Posts made in March 2016

Bicycle safety is much easier when you pay attention to your surroundings

Bicycle safety is everyone’s responsibility

Now that the nice weather is returning, the streets will again soon be filled with bicyclists who are out to get fresh air and/or get back in shape.  Biking is more popular than ever.  One study reveals that between 2000 and 2009, the number of bike commuters grew 70% across the entire United States.

Returning to an outdoor lifestyle after enduring a typically frigid New England winter is a special if fleeting experience.  As any New Englander knows, a return to the outdoors is something that is treasured and earned with patience and endurance during the many cold, dark days that preceded.  You’ll want to ensure that you are safe as you enjoy the return of summer and by observing a few simple tips, you can increase your odds

  1. Most experts agree that bicyclists should alwayswear a helmet.  Your chances of surviving an accident are exponentially increased if you take care to wear a safety helmet.  Today, there are many to choose from .  You should do some preliminary research before you buy.  You should hold your vanity in check.  Remember that the helmet that looks best on you may not necessarily be the safest.
  1. Bike on the road in the same direction as traffic.  Bicycles are considered “vehicles” and are usually expected to observe the same traffic controls as cars.  This means you need to “stop” at a stop sign, etc.
  1. Whenever possible, get off the beaten path.  You’ll find that the beauty of your surroundings increases proportionally to the decrease in traffic.
  1. Make sure your bicycle is equippedwith a light, a mirror, a bell and a water bottle.  The light will increase your visibility; the mirror will allow you to see vehicles that are approaching your position; the bell will remind those traveling in proximity that you are nearby; and the water will keep you hydrated on those humid New England days.
  1. Refrain from wearing headphones.  You should use all of  your senses while biking.
  1. Be aware that even motorists who make active use of their mirrors still have to contend with blind spots. Avoid finding yourself in an area where a motorist can’t see you.
  1. Wear bright, reflective clothing and bike in a straight, predictable path.  The more steady and visible you are, the less likely you are to be in a collision.
  1. Don’t become distracted by your phone.  Texting or prolonged talking while biking is a recipe for disaster.
  1. Learn and use hand signals.  Like driving a car, you want to “telegraph” what your intentions are before you actually turn.
  1. Make sure your bicycle is in good repair. It is wise to have your bike “tuned up” at the end of the biking season to make sure that everything is working as it should.

Observing these simple tips will keep you safe, enhance your biking experience and give you piece of mind.

This design from may have contributed to the death of Trooper Thomas Clardy

This auto design defect contributed to a state trooper’s death

Unfortunately, in our business we deal with tragic events. It’s hard to imagine a sadder situation than what recently happened to one of our State Troopers. Although pulled over on the side of the road in a Ford Explorer, his vehicle was rear-ended by another motorist and as a result, the Trooper was killed. A Ford Explorer is one of the largest non-commercial vehicles on the road, so the question goes begging: How could someone sitting in the driver’s seat of such a big SUV suffer a fatal injury from a rear-end impact? We have looked extensively into this precise fact pattern and have learned some unfortunate truths about the automotive industry as a whole.

It’s clear that front seats in nearly all cars found on the road are inadequately constructed and fail catastrophically in rear end accidents. More specifically, the seats break and thrust the occupant backwards toward the back seat. When the seat is thrust into this reclined position, the seatbelt is rendered ineffective, allowing the occupant to slide backwards, (or “ramp”) most often striking his or her head on the back seat. The result is often a fractured neck leading to either paralysis or death.

Research shows that this problems has existed for nearly 50 years. The National Highway Traffic and Safety Administration has admitted that their standard is woefully inadequate but has refused to change it due to lobbying efforts from the automotive industry. A renowned expert that we’ve had the pleasure of working with has made it his life’s crusade to expose this problem in an effort to stop these senseless deaths and life changing events. Dr. Alan Cantor has actually constructed seats out of cardboard that have passed the strength test required by the National Highway Traffic Safety Administration, literally.

Please also know that children in rear car-seats have been killed by the driver’s seat breaking and the driver’s body mass being thrust rearward. Dr. Cantor suggests that parents place child seats in the third row of any SUV that has one, or be placed behind the lighter of the two front seat occupants.

I haven’t had the opportunity to view the Explorer that the Trooper was seated in just prior to his death, but I intend to. I’m willing to bet that, predictably, the seat failed leading directly to his death. As a consumer, please be aware. And if you are wondering, the seat strength of any particular car is not listed anywhere in the car’s specs or in any consumer report because it’s not required to be. Based on our extensive research it would appear that only Mercedes, BMW, and Volvo have seats that are reinforced in a way that addresses this ongoing dilemma.

It is not talent, intelligence or even training that wins cases. It's not experience. It's pure persistence.

Persistence, Pure and Simple

The old joke goes something like this: “What is the definition of ‘minor’ surgery?”

Answer: “When someone else has to have the surgery.”

It is an entirely human phenomenon for us to look at things differently when they directly affect us as opposed to somebody else.

Like most metropolitan areas in America, Massachusetts is saturated with lawyers.  Most find this fact repugnant.  That repugnancy is immediately replaced with relief, however, when it is you that desperately needs the lawyer.  With so many excellent legal minds in a concentrated area, what quality sets our firm apart from the others?  In a word: persistence.  Calvin Coolidge had it exactly right:

 

Nothing in the world can take the place of persistence.

Talent will not; nothing is more common than unsuccessful men with talent.

Genius will not; unrewarded genius is almost a proverb.

Education will not; the world is full of educated derelicts.

Persistence and determination alone are omnipotent.

 

The slogan ‘press on’ has solved and always will solve the problems of the human race.

Persistence is our hallmark; determination, our most valuable asset.  Our clients know that we are ‘in it’ for the long haul, however long it takes and wherever the trail leads.

The key to our success?  Persistence, pure and simple.

Driver awareness of tractor-trailers can prevent Massachusetts accidents

Even though Norfolk County does not have any major interstates passing through it, there are still a large number of trucks traveling on route 115, carrying all kinds of goods and merchandise to vendors. When a truck driver or a trucking company acts with negligence, a serious truck accident can occur.

Trucking accident facts

The Insurance Institute for Highway Safety reports that 3,373 people died as the result of accidents involving tractor-trailers in 2011. The number showed a 7 percent increase over the fatality rate from 2009. When collisions happen between large trucks and passenger vehicles, the occupants of the passenger vehicles often suffer the worst injuries. In 2011, only 18 percent of fatalities in truck accidents were the occupants of the trucks, themselves.

Over the last several years, the Federal Motor Carrier Safety Administration has addressed issues such as driver fatigue, distraction and load distribution in an effort to reduce the risk of an 18-wheeler truck accident taking place. For example, the FMCSA has undertaken steps to reduce distraction among truck and bus drivers by banning the use of hand-held cell phones and texting while driving, according to distraction.gov.

Driver safety tips

While a portion of the responsibility for trucking accidents lies with truckers and their companies, drivers of passenger vehicles can also play an important role in keeping themselves safe. One of the things that drivers can do is increase their knowledge of tractor-trailers with the following safety tips:

  • When a truck is making a right turn, don’t try to go around it – due to their enormous size, semis have to make a wide turn and often will pull into the left lane. It is better to give the truck the room it needs rather than take a chance and get caught in a squeeze.
  • Don’t cut off a semi – It takes about two football fields for a tractor-trailer to stop if it is travelling at 55 miles per hour. If a car cuts in front of a semi and has to slam on its brakes there is nowhere for the truck to go but into the rear of the car.
  • Don’t hang out in a truck’s blind spots – A semi pulling a trailer has large blind spots, or no zones. These no zones are located behind the trailer, in front of the semi’s cab, to the right of the cab and to the left of the cab. When cars hang out in these places, a trucker won’t see them and could inadvertently collide with them.
  • Don’t tailgate, especially uphill – semis have to change gears when they are ascending a hill and have been known to drift backwards.
  • Try to stay away from the road’s lanes when dealing with a car break-down – this will decrease the risk of being hit by a drifting semi.

When drivers show respect to semis they can help keep themselves and others safe. However, sometimes when drivers do all they can, truck accidents can still happen, leaving them facing a number of challenges. In these instances, it is important for them to consult with an experienced attorney to discuss their legal options.

Remember that attorneys in Massachusetts can not mention in court that a defendant, regardless of whether it’s an individual or a company, has insurance that will cover nearly every judgment.

New discovery sheds light on connection between Traumatic Brain Injuries and depression

Over the past ten years, doctors and medical researchers have stepped up efforts to learn more about the ways in which traumatic brain injuries affect patients’ lives. In some cases, the long-term effects of a TBI are not only physical and cognitive, but emotional, as well. Recently, researchers from Ohio State University published a study that may explain why some of those who have suffered mild TBIs develop depression later on in life.

The study, published in the journal Biological Psychiatry, compared the brains of mice that had suffered TBIs with the brains of mice that had not. The injured mice exhibited some physical symptoms in the time immediately following their injuries, but each one seemed to fully recover in about a week. After 30 days, researchers examined the brains of the injured mice. They discovered that the injured brains showed signs of continued inflammation caused by a heightened immune response. This inflammation corresponded with depressive symptoms observed in injured mice that were not observed in uninjured mice. The researchers believe that these problems would have worsened over time had they continued to monitor the mice.

In an uninjured brain, cells called microglia act as the primary defenders against infections and injuries by producing inflammation triggering chemicals. This inflammation is not severe enough to cause damage, but rather is just enough to help the brain repair itself. After a brief period, the inflammation subsides.

In injured brains, however, the microglia go on high alert and generate an immune response that causes excessive inflammation. Under these circumstances, even if a patient appears to have recovered fully from a TBI, his brain is damaging itself with its own immune system. In some cases, it may take years before this damage begins to exhibit itself, and it may be the cause of depressive symptoms.

This study is important because it provides essential insight into possible treatments for those with TBI related emotional issues. First, it may be possible to develop drugs that stop the brain’s natural immune response in the time after an injury, which would reduce inflammation and help prevent long-term damage. Second, knowing that depressive symptoms arise due to an inflammatory response explains why patients with TBI related depression do not typically respond to antidepressants.

Treatments that prevent or reverse the brain’s immune response are likely years away, but understanding the problem is the first step to helping those who have suffered traumatic brain injuries.

Bicycle accidents often due to the negligence of automobile drivers

When a bicycle suffers a collision with a motor vehicle, the results are often fatal. It is an all-too-common occurrence, as a recent news story demonstrates.

According to CBS Boston, on October 11, 2013, a man was riding his bicycle in Middleboro, Massachusetts, when he was struck and killed on Wood Road near his home.

The victim’s family said the 58-year-old man had already suffered through a lot of challenges in his life. He was a liver transplant recipient who nearly died last year from complications but eventually recovered. The motor vehicle collision cut short his second chance at life.

Bicycling accidents and fatalities

According to the National Highway Traffic Safety Administration, nearly 700 bicyclists were killed and an additional 48,000 were injured in motor vehicle traffic crashes in 2011, making up two percent of all people injured in traffic crashes during the year. Sixty-nine percent of the fatalities occurred in urban areas like Boston. The majority of fatalities occurred between 4 p.m. and 8 p.m., when many commuter bicyclists are returning home from work.

The NHTSA provides the following safety reminders to motor vehicle drivers:

  • Drivers of motor vehicles must share the road with bicyclists.
  • Motor vehicle drivers should be courteous.
  • A driver should allow at least three feet clearance when passing a bicyclist on the road.
  • A driver should look for cyclists before opening a car door or pulling out from a parking space.
  • A driver should yield to cyclists at intersections and as directed by signs and signals.
  • Drivers should be especially watchful for cyclists when making turns, either left or right.

Unfortunately, many motor vehicle drivers either do not follow or actively disregard this common-sense advice, leading to serious injuries and even death. A National Safety Council report estimates that the total cost of bicyclist injuries and death is more than $4 billion per year.

Under the law, motorists are required to exercise reasonable care to avoid collision with bicyclists. What is considered to be reasonable care required of a motorist so as to avoid striking a bicyclist depends on the place, circumstances, conditions and surroundings. In general, the motorist must drive at a reasonable rate of speed, maintain an adequate lookout, and keep his or her vehicle under control, while obeying the rules of the road. When a driver fails to observe one or more of these criteria and a bicycle accident occurs, the driver may be liable.

The compensation you deserve

If you or a loved one are injured while riding a bicycle due to the negligence of another driver, it is important that you receive the compensation you deserve for your injuries or loss. Seek an experienced personal injury attorney who will thoroughly investigate your claim, and who will work hard to protect your rights.

Press Release – Synthetic Marijuana

The emergence of synthetic marijuana, also referred known as Spice, Fake Pot or K2, in gas stations and convenience stores across the country poses a significant safety concern to the general public, particularly young adults and teenagers. The product, when smoked, mimics the effects of cannabis but has potency three to five times greater than THC and has reported symptoms of extreme anxiety, paranoia and hallucinations.

Because synthetic marijuana is marketed and advertised as incense or potpourri, the manufacturers and retailers can legally distribute and sell the product across the country. Dating back to 2010, this dangerous product is responsible for many serious personal injuries and deaths.

Spice or synthetic marijuana can be purchased, regardless of age, at local convenience stores and gas stations. In other words, teenagers and adolescents can purchase the drug legally, smoke the substance and suffer effects more dangerous than many of the DEA’s banned substances. There have been multiple reports whereby teenagers smoke some form of synthetic marijuana, operate a motor vehicle and, due to being significantly impaired, crashes the vehicle resulting in serious personal injuries or death to themselves or other innocent victims.

The attorneys at Colucci, Colucci, Marcus & Flavin have a long history of successful prosecution of all types of personal injury claims, including product liability. Experienced and aggressive attorneys are essential to the successful prosecution of these types of cases. The lawyers at Colucci, Colucci, Marcus & Flavin are currently investigating and pursuing claims against manufacturers, distributors and retailers of synthetic marijuana and its various forms. For a free consultation and evaluation of your potential claims, please call and speak with one our attorneys immediately.

Tales from our files – Lessons Learned Concerning Nursing Home Care

Nursing Home Care

My legal practice is concentrated in assisting victims of nursing home negligence throughout Massachusetts and Rhode Island. Over my twenty-five year career, I believe I’ve seen nearly every conceivable fact pattern concerning neglect and abuse at these facilities. It recently occurred to me that providing examples of the problems that my clients have encountered over the years might serve a useful purpose in helping others to avoid common lapses in nursing home care.

Upon the initial admission to a nursing home, the staff is obligated to conduct an assessment of each patient to properly assess that person’s needs and to create an individualized “Care Plan” for them. If done correctly, the assessment will determine, among other things, whether an immobile patient requires assistance in “transferring” or moving from bed to chair or to the bathroom. The overall safety and welfare of the patient is the principle concern, of course. Sometimes, however, facilities are either understaffed, unprepared or simply “too busy” to properly and safely address the critical needs of their residents.

I had the honor to represent an 88 year old woman that I’ll call “Ann.” She had long been a resident of the defendant’s facility due to advanced Alzheimer’s Disease and other medical complications. Sadly, Ann was unable to verbally express herself, was non-ambulatory and remained completely dependent upon the defendant’s staff for all activities of daily living. Despite her many medical complications, Ann did not suffer from osteoporosis, however. The importance of this latter fact will become clear as you read on.

One day, Ann was being transferred to her bed with the use of a machine known as a Hoyer lift. It was immediately after this transfer that the she began to crudely express that she was in pain. Oddly, no trauma, fall or other “event” was recorded by the defendant’s employees in Ann’s medical chart. When her pain became unbearable, Ann was transferred to the hospital where she was diagnosed with a markedly displaced femur fracture with fragmentation and a massive hematoma. Her extensive injuries required immediate surgery. Ann’s family suspected that she had been dropped during the transfer on the Hoyer lift but the facility vigorously denied this. The case was further complicated inasmuch as there was no independent witness to any suspected accident. We argued that the displaced fracture of the patient’s femur, the body’s largest and strongest bone, was sufficient evidence that a trauma had indeed occurred. Moreover, we argued that the “fragmentation” (splintered bones) and “hematoma” (deep bruising) were corroborating evidence of a traumatic event that the facility had conveniently neglected to record. In response, the facility hired a medical expert who was prepared to testify at trial that Ann could have suffered her fracture by “organic means” (e.g. brittle bones in the elderly can sometimes break spontaneously-without a trauma). They cited the common occurrence of a senior suffering a rib fracture after a hearty sneeze. We successfully refuted this suggestion by conclusively demonstrating that Ann did not previously suffer from osteoporosis or other skeletal degeneration which would tend to make her bones exceedingly brittle and thus subject to fracture without first suffering a trauma. During the course of our investigation we also discovered that, even before Ann was a resident, this particular facility engaged in a systemic failure to promptly and accurately report accidents that injured their residents.

A large settlement was reached on the eve of trial, presumably because the facility was fairly convinced that a jury would likely punish them for their deception in failing to own up to their role in both causing and properly reporting Ann’s accident.

As always, a family’s best defense against nursing home neglect is both vigilance and active involvement in the care of their loved one.

Bill would make Massachusetts state workplaces subject to OSHA standards

Bill would make Massachusetts state workplaces safer

Since 1970, the U.S. Occupational Safety and Health Administration has set standards to protect workers in the private sector. If there is an accident at a construction site, or if someone is injured at a manufacturing facility, OSHA will investigate the incident, order the employer to make any necessary changes and even levy fines in particularly egregious cases.

In Massachusetts, there is a notable legal loophole that means that some workers may find themselves in an unsafe workplace. Although OSHA standards cover private employers and Massachusetts law mandates safety standards for municipal employees, neither law applies to state workers – including those who work on the state’s highways. A new bill, recently introduced in the state legislature, would give state workers the same workplace protections that are given to municipal and private sector employees.

Specifically, the bill would not only provide OSHA protections to state employees, but would also allow the Massachusetts Department of Labor to set safety regulations and standards. The author of the bill, State Senator Marc R. Pacheco, says that its purpose is to prevent workplace accidents.

Although the bill may seem common sense, Pacheco is unable to determine whether state legislature’s Joint Committee on Labor and Workforce Development is likely to act on it. In fact, Pacheco says has introduced similar legislation before the legislature unsuccessfully for at least the past five years.

Proponents of the measure, including the Massachusetts Coalition for Occupational Safety and Health, say that it would not only make state workplaces safer, but would also save the state money. Each year, Massachusetts spends approximately $48 million on workers’ compensation claims. If setting safety standards and ensuring compliance with OSHA regulations prevents just 10 percent of accidents in Massachusetts, the measure could save the state approximately $5 million annually. This is in addition to the substantial liability the state faces due to unsafe construction sites and other workplaces.

Nevertheless, the bill does have opponents. Most of those opposed to the bill argue that the change would substantially increase costs and would create yet another state bureaucracy. Neither of these objections, however, addresses the need to prevent accidents or create safer workplaces for state workers.

Time will tell whether Pacheco’s bill becomes law, but it may well be a step in the right direction for Massachusetts. After all, those workers who put their health and safety on the line to perform jobs for the state deserve all the protection they can get.

When Your Lawyer Is Part of the Problem Rather Than the Solution

Ordinarily, people consult a trial attorney at a time when they are under the stress and strain caused by a significant problem in their life. Perhaps they have suffered medical negligence, they are in the throes of a divorce or they are being sued in a business dispute. They seek legal guidance, of course, but they also desire reassurance that their lives will eventually resume a state of normalcy. The very best lawyers are good listeners, problems solvers and genuinely sympathetic to the particular needs of their client. The foundation of every attorney/client relationship is trust. At first, the client may be reluctant to genuinely place their full confidence in their lawyer. This is understandable. Trust is earned over time. Indeed, most attorneys work hard to earn their client’s trust and achieve their client’s goals. Regrettably, there are those instances each year when some lawyers will actually compound their client’s problems due to inattention and malfeasance.

According to the American Bar Association’s “Profile of Legal Malpractice Claims” publication, incidence of legal malpractice are most common in the area of Personal Injury law- (19.96% of claims); Real Estate- (16.46% of claims); Family Law-(9.58% of claims); and, Estate, Trust, and Probate law-(8.63% of claims).

When a lawyer makes a mistake, there are nearly always significant and undesirable consequences for the client. Legal malpractice may take many forms:

  • Failure to meet court deadlines;
  • Failure to act within the statute of limitations;
  • Failure to return phone calls or communicate with a client;
  • Failure to resolve conflicts of interest;
  • Failure to know the law or perform adequate research;
  • Abuse or misuse of a client’s trust account, including commingling trust account funds with the attorney’s personal account; and,
  • Failure to adequately prepare for hearings and trials.

The only remedy under these circumstances is for the client to pursue a legal malpractice claim against the lawyer. Most, but not all lawyers, maintain malpractice insurance to cover incidence such as those listed above.

There are things a client can do, however, to minimize the chances of suffering the consequences of attorney neglect. For example, clients should take an avid interest in their case. This means establishing early on that you expect frequent updates from your attorney. Clients should expect to see their case progress over time. When things appear stagnant, the client should request a meeting with the attorney. This kind of client participation ensures that the attorney is on their toes and always looking to move the case forward to a resolution.

Dino M. Colucci, Esquire, is a founder of Colucci, Colucci, Marcus & Flavin, P.C., a law firm dedicated to representing victims of neglect. He is also an adjunct Professor of Law at Suffolk University Law School.