CORONAVIRUS UPDATE: Click Here to Learn What We Are Doing to Protect Our Clients
William D. Kickham
William D. Kickham
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Nursing Home

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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.

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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.

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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.

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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.

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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:

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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.

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As I’ve written about previously on both this blog and elsewhere, the Massachusetts Legislature finally woke up last fall and presented Gov. Charlie Baker with a bill with (supposedly) teeth in it to ban hand-held cell phone use in Massachusetts, and the Gov. signed it.  After 90 days from signing, the law went into effect on February 23 2020 with what I regard as a needless grace period for offenders until March 31 – i.e., drivers in Massachusetts caught using hand-held cell phones while operating a motor vehicle will only be issued warnings until March 31.  As of April 1, offenders will be fined according to a tiered structure (see below).  Given the fact that the law was passed and signed with much fanfare and media publicity several months ago, as a Boston car accident lawyer I thought that this grace period was a needless concession to cell phone carriers, but the chief components of the new law are worth re-capping here.

This new law provides different restrictions and legal impacts for drivers over the age of eighteen, and drivers under eighteen.

Drivers who are age 18 or over:

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Here it is Thanksgiving Day 2019, and I thought I’d post these thoughts before sitting down for dinner.  Actually, I’ve made it a practice to contemplate on what I’m grateful for almost every day of the year that I can:  It’s a smart habit to form.

On a professional level, as a Massachusetts car accident attorney, I’m grateful that – finally – a ban on hand-held cell phone use while driving has been signed into law.  I’ve been publicly advocating for this for a few years now, and Gov. Charlie Baker finally signed the measure into law this past Monday.  Very briefly, the new law’s provisions:

  • Use of hand-held electronic devices while driving a motor vehicle – importantly, whether cell phones or otherwise – is banned beginning February 23, 2020. That’s 90 days after the law was signed by the governor, but the law provides a grace period through to March 31, 2020, which means that drivers who are cited for violation of the law prior to March 31, will receive a warning, not a fine.  As a Boston injuries attorney who has seen far too many preventable injuries caused by driver cell phone use, I thought that this additional grace period was unnecessary, and represented too much of a politics-based concession to the members of the Flat Earth Society who claimed that drivers would “need time to adjust”.  My immediate response:   Please.  No further comment needed.  At any rate, from April 1, 2020 forward, violators will be hit with fines, as discussed further below.  Aside from my observation above about the unnecessary ‘grace period’, inside each of the additional bullets below are my thoughts as an attorney who deals every day with accidents and injuries that are caused by Massachusetts distracted driving accidents.
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In Part One of my post on this subject, I discussed what Roundup is, what the history of these cases is, how cases are being brought to the courts, and what the possible values of these cases might be for people who have been exposed to it and have developed Non-Hodgkins Lymphoma (NHL) or similar types of cancer.  Let’s proceed to whether or not someone who has been exposed to Roundup and has been diagnosed with NHL, might have a legally actionable claim for damages.

How Do I Know If I or A Loved One Has a Case Against Roundup?

One big misunderstanding that all the TV and internet ads about Roundup litigation have created is the idea that anyone who has ever bought and used Roundup, and who now may “not feel good”, has a valid claim. Not true. Plaintiffs who present valid Roundup injury claims, are typically people who have had long-term exposure to Roundup, and later developed Non-Hodgkin’s Lymphoma or other cancers. Those types of plaintiffs typically are:

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I’ve warned my clients, friends, and readers of this blog in previous posts several times, but I know that I can’t say it enough, so I’ll say it again in today’s post:  If you believe that your loved one in a Massachusetts nursing home, Massachusetts nursing care facility, Massachusetts long-term care facility or “Massachusetts Memory Care Center” (the newest term that the nursing home industry has developed to capitalize on the exploding elderly population suffering from Alzheimer’s Disease and dementia), is being neglected, mistreated, or abused in any way, you cannot rely on your reporting it to the Massachusetts Department of Public Health (DPH) to come in and address the problem rapidly or effectively.  They are not the cavalry – they are not going to come and “save the day” any time soon.

The Massachusetts DPH is part of a massive state bureaucracy.  It is over-worked, under-staffed, and while many of those who work there are dedicated to their jobs and sincerely care about their responsibilities, many more aren’t so dedicated.  Trust me, as a Massachusetts nursing home neglect lawyer, I know.  I’ve seen many such a lazy DPH staffer, in the many years that I’ve handled Massachusetts nursing home neglect cases.  But the average person who isn’t familiar with these matters doesn’t know this (they wouldn’t be expected to.)  They mistakenly think, if they suspect that their loved one is being neglected or abused, that if they threaten the nursing facility that they will report the matter to the state DPH, the nursing facility will react in fear and leap into action to immediately and permanently correct the neglect or abuse.

If you’re in such a position right now, you’d be a fool to believe that such a result will occur.  The fact is, most Massachusetts nursing facilities are fully aware that it takes the DPH months to even begin to act on a complaint against a Massachusetts nursing home, Massachusetts rehabilitation center or nursing facility.  More so, they know that once the DPH does get around to acting on the complaint, the nursing home will have long eliminated any evidence of the reported neglect or abuse, and as a result, in many instances the nursing facility will not be punished by the DPH.  And I’m sorry to say this, but you’d be very foolish to think that the standard technique (read:  ruse) that 99.9% of these facilities employ to assuage complaining family members, will be in any real way effective.

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