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William D. Kickham
Construction Accident
Car Accident
Nursing Home

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.

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.