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William D. Kickham
William D. Kickham
Construction Accident
Car Accident
Nursing Home

Two Boston construction site workers were tragically killed earlier today in downtown Boston.  While all such catastrophic events and the resulting tragedies are difficult to describe, this one was especially awful.

According to multiple news media reports, including Boston25 News, the two construction workers – Jordan Romero from Lynn and his co-worker Carlos Gutierrez of Chelsea, were killed in a trench accident apparently caused by a dump truck.  The 20-foot deep trench at the site collapsed into itself after the dump truck apparently came too close to it, and caused the trench to collapse.  When the trench collapsed, the truck then fell into it.  From information available as of this evening, it is not exactly clear at this point whether the two construction site workers were already in the trench when it collapsed, or were possibly thrown into the trench first after the truck hit them.  In either event, reports are that the event was horrific.  It may be that the men died of suffocation, possibly buried alive.  It is too soon to say at this point.

As a Boston construction site accident lawyer, I’ve seen too many of these awful incidents – involving catastrophic, life-long injuries and disabilities, and death.  And they shouldn’t happen.  While some might say, “Accidents happen.  What are you going to do?  They can’t be prevented”, that is not true.  They can be prevented, and they should be prevented.  Multiple levels of government – the federal Occupational Safety and Health Administration (OSHA), the state of Massachusetts and in this case, the City of Boston as well – provide regulations, minimum safety standards and safety protocols for construction sites – and they are designed to prevent tragedies like this.  When those safety procedures and protocols are not followed to the letter, incidents like this awful tragedy today are what can, and do, result.  So no, these events are almost never the kind that “couldn’t be prevented” – in the many cases I’ve successfully represented as a Massachusetts construction site fatality attorney, they almost always could have been prevented.

It has now been been almost one year since Massachusetts nursing homes locked their doors to the families of their residents. This action, while initially taken on March 13 2020 to prevent transmission of the Covid-19 virus, has turned into an obscene excuse for drawing down an Iron Curtain between residents and their families, who are desperate to know that their loved ones are not being neglected.  There was some relaxation of this visitation ban in late 2020, but the conditions that a family member must meet in order to visit a loved one, remain largely very difficult.  After tolerating more than one year of this pain and with vaccine rollouts now a reality left & right, this “lockout” is now no more than an excuse to, essentially, operate their businesses in secret, far from the ‘prying eyes’ of visiting family members.

Stop for a moment and try to imagine what it would be like for you as a family member forbidden from seeing your loved one who is in a nursing home or a Massachusetts “skilled nursing facility” (almost an oxymoron).  How would you know he or she was being properly cared for?  Answer:  You wouldn’t.  As a Massachusetts nursing home neglect & abuse attorney, I can assure you:  Under the best of circumstances, nursing home residents, as well as some Massachusetts rehabilitation hospital patients, are often neglected and abused.  The cases I’ve come to know as an attorney are horrific.  And secondary to family members, is the primary effect this lockout has on residents themselves:  They are lonely, frightened, often neglected, and often without anyone to advocate for them.  While the federal Centers for Medicare & Medicaid Services (CMS) previously allowed for some minor relaxation of these “lockout orders” in September 2020, family members as a whole still cannot easily, readily visit Massachusetts nursing home residents.

As a legal expert in this field, I have been interviewed by the media about this issue and nursing home neglect in general, and I have blogged about it previously as well.  More people need to know about this cruelty and neglect that is an everyday reality for tens of thousands of Massachusetts nursing home residents, and I encourage readers of my blog to share this post with others – just click on any of the social media icons just below the title to this post at top left, above.  Viral messaging like this can spread in a positive way, very quickly.

While the 1990’s saw a string of very large settlements from class actions against various individual tobacco companies and the tobacco industry in general.  One class action settlement in particular involved hundreds of millions of dollars paid to state governments that sued the tobacco industry for the hundreds of millions in Medicaid funds that the states paid to provide medical care for victims of lung cancer and others illnesses caused by smoking.

But what about individual plaintiffs?  Can they still sue a tobacco company if they feel that their lung cancer or other types of cancer was caused by smoking?

The technical answer is that anyone can file a lawsuit against anyone else, at almost anytime, for anything.  The civil justice system provides that wide access for good reason – -so that no one can be ‘shut out of court’; and so that the average person can take on huge, deep-pocketed defendants.  So that injured victims can take on automakers, dangerous product manufacturers, chemical companies, etc.  Our constitution and system of justice guarantees us all that right.  But the right to file a suit agai9nst someone – and the likelihood of winning that suit – are anything but the same thing.  In fact, they’re world apart.

With the actual arrival of a coronavirus vaccine now just days away, U.S. Health and Human Services Secretary Alex Azar stated on CBS’ Face The Nation today that “all” nursing home residents could receive vaccinations by Christmas.

Because I’ve received so many requests for help and legal representation by the families of Covid-infected Massachusetts nursing home residents, I’m heartened to hear this – but skeptical of the timeframe offered.  As almost any knows after ten months of this pandemic infecting every aspect of life in this country, this virus affects primarily the elderly (i.e., over 72 years old) and the those that are immunocompromised.  People who are residents of nursing homes and rehabilitation centers are acutely vulnerable, because they are old, weak, and because viruses and bacteria are rampant in these environments.

The fact that Governor Baker decided to provide legal immunities to Massachusetts nursing homes and Massachusetts rehabilitation facilities was, in my opinion as a Massachusetts nursing home neglect attorney, ill-advised and counter-productive.  While hospitals and the nursing home industry prevailed in that fight, it was, both legally and socially, an awful decision.  One needn’t be an attorney to realize why:  Think about it:  Health care facilities such nursing homes and assisted living facilities have always been, even under “normal” circumstances when they can be sued for negligence, known as places where patient neglect and abuse can be commonplace.  Shielding them from most negligence suits during a pandemic – a time when they should be at the height of vigilance about patient care in those facilities – is the height of folly. This legal immunity was provided on top of all visitors to Massachusetts nursing homes and assisted living facilities being banned from entering these facilities since last March – including family members.  The result? Families of nursing homes have been blind about how their loved ones are being treated.

In Part One of my post on this subject, we discussed how dangerous and severe Massachusetts Construction Site Accidents can be.

Due to these realities, workers compensation payments alone for such catastrophic construction site accidents -which consist mostly of reimbursement for medical bills and lost wages – will often be inadequate to pay for such severe damages.  The “silver lining” here is that with construction site accidents, more potentially liable parties than just the worker’s employer are involved: Just take a look at the next construction site you might walk by:    There are multiple parties on a typical construction site – contractors and subcontractors – who could be potentially liable for a worker’s injuries or death:   Heavy equipment providers like backhoes and bulldozers; crane manufacturers, electrical equipment manufacturers; explosive equipment manufacturers; girders, metal and pipe suppliers; protective equipment providers; the list goes on and on.  Each of these entities have their own equipment, personnel and responsibilities at the site.

Who’s At Fault?

The title to the above post is a good one, because when construction site workers suffer on-the-job injuries, who pays for those injuries can often be confusing, due to Massachusetts Workers Compensation laws, governed by M.G.L. Ch. 152. That’s because employees who are injured (or killed) while on the job in Massachusetts are treated differently than people who suffer bodily injuries that are not work-related.  Under Massachusetts law, employees cannot sue their direct employer for negligently causing their injuries. If an employee is injured on the job, the injured worker typically files a workers compensation claim with the employer, which allows for speedier compensation payments to be made to the injured employee, but does not allow the injured employee to directly sue his employer for any injuries.

The money to pay injured workers come from workers compensation insurance policies, and the premiums for this type of insurance are paid for, under law, by the employer. Most employers in Massachusetts are required to carry “workers comp” insurance. The premiums for this type of insurance are paid for, under law, by the employer. The whole point is to provide a regulated system that efficiently compensates injured workers, while protecting employers from being sued in the courts. It’s been that way for a long time not only in Massachusetts, but in most other states, as well.

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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.