Posts made in February 2018

Not All Falls Are Just Accidents

Falling is a leading cause of accidental death worldwide, and it is a major cause of personal injury. Sometimes, a fall is just an accident, and nothing could have been done to avoid it.  However, that does not mean that one legally can turn a blind eye towards hazardous conditions.

As a general rule, liability for negligence is imposed when a person owes a legal duty to another, and a breach of that duty proximately causes an injury. One such legal duty that is recognized in the common law is the duty of an owner or possessor of land to exercise reasonable care to persons lawfully upon the premises.

That duty includes an obligation to warn visitors of any unreasonable dangers of which the landowner is aware or reasonably should be aware.  Although a landowner is not obligated to warn of open and obvious dangers, that does not mean that a landowner can maintain his or her property in an unreasonably unsafe condition as long as the unsafe condition is open and obvious.  Rather, the landowner’s duty includes an obligation to maintain the property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.  Even though an open and obvious danger provides its own warning, a landowner is not relieved from remedying that danger where he or she knows or has reason to know that lawful entrants may not heed the warning for a variety of reasons, including their own failure to exercise reasonable care.

For that reason, it is not always apparent whether a fall was just an accident, or whether it could have been avoided. If there is doubt, there is nothing wrong with asking an attorney whether something could have been done to prevent a fall from occurring.

The law firm of Colucci, Colucci, Marcus & Flavin, P.C. has been recognized by Newsweek.com as one of the Top 10 Best Law Firms for Personal Injury in the Country. Attorney Darin Colucci has also been recognized by Newsweek.com for 3 consecutive years as one of the Top 10 Best Personal Injury Attorneys in the Country.

Tales From Our Files: Undocumented Nursing Home Accidents

Regular readers of this column know that our office routinely undertakes the representation of senior citizens who have been injured and, in some cases, killed, due to nursing home abuse or neglect.  The facts that comprise each individual case are universally sad and nearly always preventable.  One recent case illustrates this point.

On May 22, 2015, an elderly and long term Alzheimer’s patient, was transported from her residence at a nursing home to the emergency room of a nearby hospital with an obvious deformation of her right leg.  Her medical records at the nursing home revealed that she had been completely dependent on her caretakers for all activities of daily living.  She was mostly bed bound, and could only transfer to a chair via a Hoyer lift.  Upon arrival at the hospital, it was determined that she had sustained a displaced femur fracture.  The treating physician noted that this injury had the appearance of possibly having existed for days prior to his examination.  The resident’s family alleged that they had not been timely notified of any kind of accident or fall. Indeed, the resident’s medical chart at the nursing home made absolutely no mention of or reference to any sort of accident that may have occurred.  Upon examination at the hospital, the emergency room physician also noted that the resident’s bones were “diffusely demineralized.”  This compromised condition, the defense ultimately alleged, likely caused the bone to break organically, rather than as a result of an external trauma.  Throughout the pendency of negotiations, the defendant refused to acknowledge that an undocumented accident had in fact occurred.

As a result of her injuries, the decedent underwent a right femur debridement closed reduction pinning external fixator surgery on her open fracture.   Unfortunately, five days later, the resident died for unrelated reasons. 

Several well-known Boston law firms declined to accept this case, particularly because the resident’s death was seemingly unrelated to the injury she sustained while at the nursing home.  The fact that the resident suffered with this injury for only 5 days before her death was also a factor in persuading these “ivory tower” law firms to pass on accepting this case. 

It has never been our practice to reject what we believe to be a meritorious nursing home negligence case merely because the elderly victim’s suffering was limited to a finite period of time.  Rather, we felt honored to represent this senior citizen and to hold the facility fully accountable for their negligence and their purposeful failure to properly document their resident’s accident and resulting injuries.  

We ultimately settled the above case for nearly $200,000, (which had the concomitant effect of allowing surviving family members to feel somewhat vindicated after being ignored by the facility for so long).  What was perhaps even more satisfying, however, is that we successfully persuaded the facility to offer to the family a formal apology for their improper conduct.

 

Who’s Liable When an Autonomous Car Crashes?

With the rise of interest in self-driving cars, two questions commonly comes up – Are they actually safer, and who is liable if a self-driving car crashes?

In 2013, the National Highway Traffic Administration released a 6-level classification system for autonomous cars.  Level 0, the lowest level, means the automated system may issue warnings to the driver, but the driver is completely in control of the vehicle. Level 5, the highest level, means that no human interaction is required – the vehicle completely drives itself.

At anything lower than a level 3 autonomous vehicle, the level at which a driver can safely focus their attention on tasks other than driving, a driver is responsible since they clearly need to interact with the car in order to prevent accidents. At level 2, it is required that a driver keep their hands on the wheel and must be ready to intervene should something go amiss with the automated system.

Currently, laws have not been able to keep up with technology, and technology has not yet advanced to the stage where level four or level 5 autonomous cars can be on public roads.  It is expected that as cars move towards being more and more autonomous, eventually, liability will shift from the driver to the car/its manufacturer.  Autonomous cars in the future may even be programmed not to commit certain traffic offenses, such as speeding, traffic violations, etc. This would mean that autonomous cars might even be the safest option for vehicles in the future – as studies have shown, the vast majority of crashes occur because of human error.

The law firm of Colucci, Colucci, Marcus & Flavin, P.C. has been recognized by Newsweek.com as one of the Top 10 Best Law Firms for Personal Injury in the Country. Attorney Darin Colucci has also been recognized by Newsweek.com for 3 consecutive years as one of the Top 10 Best Personal Injury Attorneys in the Country.

 

Tales From Our Files: Taking The Case Most Law Firms Don’t Want

Over the course of many years, our law office has made its reputation in successfully taking on cases that most other firms don’t want.  This is particularly true in matters that involve senior citizens who are injured or killed due to the negligence of others.  The prevailing thinking among most law firms seems to be that the injury or wrongful death of a person in their 70’s, 80’s or 90’s isn’t worth all that much.  After all, they coldly reason, a person who attains that lofty age has already eclipsed their statistical life expectancy.  As a result, most law firms prefer not to expend the necessary time and expense pursuing cases that they deem are ultimately of minimal value.  Not only have we continually rejected that narrow minded and insensitive philosophy, we’ve railed against it.  The case described below is a perfect case in point.

On November 21, 2016, our client, an 87 year old man, was struck head on by another elderly driver.  He succumbed to his injuries 5 hours later.  Prior to the accident, our client lived alone and cared for himself.  He was never married and had no children.  His only relatives consisted of siblings who, like himself, were placed in separate and various foster families while growing up.  Because they were reared in different households, many years passed without the siblings regularly seeing or speaking with each other.  Owing to these sad circumstances, (as well as the fact that most of his siblings ultimately settled out of state), our client did not maintain a close relationship with any of his blood relatives in adulthood.

Several large and well known Boston law firms refused to accept this case on the grounds that it, in their learned opinion, it possessed only minimal value.  After all, the victim was in his upper 80’s and only suffered for 5 hours after his accident.  As is our custom, we took the case and put all of our resources into it.  We originally mediated the case but refused to settle it because the offer was so low.  We continued to battle on.  Ultimately, a settlement was achieved between the parties in the amount of $350,000.

Our core philosophy that every life deserves an equal measure of our attention, devotion and level of commitment was once again affirmed.

 

Dino M. Colucci, Esquire, is the founder of Colucci, Colucci, Marcus & Flavin, P.C., a law firm dedicated to representing victims of neglect. For many years he has lectured and served as an adjunct Professor of Law at Suffolk University Law School.  He has also been consistently named as a “Super Lawyer” by his peers as published by Boston Magazine.

Dino M. Colucci, Esquire

Colucci, Colucci, Marcus & Flavin, P.C.

424 Adams Street

Milton, Massachusetts 02186

(617) 698-6000

dino@coluccilaw.com

 

Staffing Issues that Can Contribute to Nursing Home Negligence

Read Before Signing – What You Need to Know About Nursing Home Admissions

Nursing homes exist to care for the most frail and vulnerable members of our society. Placing a loved one in a nursing home is never an easy decision, but family members typically find peace in making such a decision with the knowledge that their loved one will be kept safe.

Most nursing home residents are well cared for throughout their stay, but sometimes things go wrong. When things go wrong, nursing home residents can suffer catastrophic injuries.  They can be abused, and they can be neglected.

Because such things can and do happen, most large nursing home chains frequently have new residents or their family members sign pre-dispute arbitration agreements to keep civil claims arising from such injuries, abuse or neglect out of the court system.

More often than not, the residents and their family members are never aware that an arbitration agreement was included in the stack of paperwork that was signed during the admission process. If and when they do find out, it is almost always after something has gone wrong, and at that point, their avenues of legal recourse are limited.

It is never wrong to read nursing home admission paperwork before signing it, and it is never wrong to ask questions about it. If the questions are not answered to your satisfaction, or if you have any other concerns, there is nothing wrong with consulting with an attorney.

The law firm of Colucci, Colucci, Marcus & Flavin, P.C. has been recognized by Newsweek.com as one of the Top 10 Best Law Firms for Personal Injury in the Country. Attorney Darin Colucci has also been recognized by Newsweek.com for 3 consecutive years as one of the Top 10 Best Personal Injury Attorneys in the Country.

What is Implied Warranty of Habitability?

What is an implied warranty of habitability?

As a tenant, you have a right to a safe, decent, and sanitary place to live. The implied warranty of habitability is a legal duty imposed on residential landlords that a rental unit has to comply with State building and sanitary codes in order for people to live there. If a premises is in violation of these codes, and a tenant is injured, the landlord can be held liable for the injury under this implied warranty. It is not a warranty that can be waived.

Does this warranty extend to guests of tenants?

In Masschusetts, yes. The Supreme Judicial Court ruled in Scott v. Garfield, 454 Mass. 790 (2009), that guests of tenants could recover from landlords if they were injured on the tenant’s rented property.  The Court found in favor of this because, logically, a tenant might invite a guest to his rented home, rented homes must be safe for guests to visit, and landlords have an obligation to maintain a habitable premises for their tenants.

The law firm of Colucci, Colucci, Marcus & Flavin, P.C. has been recognized by Newsweek.com as one of the Top 10 Best Law Firms for Personal Injury in the Country. Attorney Darin Colucci has also been recognized by Newsweek.com for 3 consecutive years as one of the Top 10 Best Personal Injury Attorneys in the Country.

Slip and Fall Cases – The Most Misunderstood Cases

Slip and Fall (Trip and Fall) cases are some of the most misunderstood cases in the world of personal injury law. People often think that if you fall on someone’s property that the property owner is immediately responsible.  Such is definitely not the case.  For any property owner or property maintenance company to be responsible you have to be able to prove that they were negligent in causing the tripping or slipping hazard.  Very often a client will call our firm and say “I fell down a flight of stairs and broke my ankle and needed surgery.”  So you have damages.  The next question we ask is “What caused you to slip?”  If someone says “I don’t know”, there will be no case.

If you have something like this happen, and have the misfortune of slipping and becoming injured, you have to find out what you slipped on.  Often times security cameras will have caught the event.  It makes sense to request that they safeguard any surveillance video that could show the incident. But, if you read this article and can maintain presence of mind despite being injured, you will know to ask whoever you are with to go back and look immediately after the event to see what, if anything, is there.

Very often slip and fall incidents occur in supermarkets.  It would really make or break a case to know what you slipped on.  It could be something as small as a grape or something as large as a quart of milk that spilled on the floor.  In any event, determining what caused you to trip or slip will always be central to the viability of the case.  Conversely, if there was nothing identifiable that caused you to slip or trip, no case exists.

The law firm of Colucci, Colucci, Marcus & Flavin, P.C. has been recognized by Newsweek.com as one of the Top 10 Best Law Firms for Personal Injury in the Country. Attorney Darin Colucci has also been recognized by Newsweek.com for 3 consecutive years as one of the Top 10 Best Personal Injury Attorneys in the Country.

 

 

#MeToo

Recent times have seen a tidal wave of brave men and women emerge to tell their sad tales of sexual abuse at the hands of their bosses, coaches, teachers, doctors and others who were in positions of power, influence and professional superiority. Seemingly gone are the days when the rich and powerful can expect to be insulated from the consequences of their bad, (or even criminal), behavior merely because they are rich and powerful.  This is, of course, how it should be.

Thanks to the courageous and newly vocal men and women who no longer feel obligated to lead lives of silent suffering, there is new hope and encouragement for the many more who still feel the misplaced guilt that attends being victimized by someone who occupied a position of trust.  It’s axiomatic that the world can be an unfair place.

We see it as our job to enforce a full measure of accountability on those who violate the trust of others, particularly the most vulnerable among us.

The law firm of Colucci, Colucci, Marcus & Flavin, P.C. has been recognized by Newsweek.com as one of the Top 10 Best Law Firms for Personal Injury in the Country. Attorney Darin Colucci has also been recognized by Newsweek.com for 3 consecutive years as one of the Top 10 Best Personal Injury Attorneys in the Country.

Staffing Issues that Can Contribute to Nursing Home Negligence

Staffing Issues That Can Contribute to Nursing Home Negligence

It is always a tough situation when a loved one must transition to a nursing home. As a relative, you no doubt research nursing homes in your area in order to find the most suitable living environment, with the assurance that your loved one’s needs will be met and that they will be well taken care of.

However, quite often those living in a nursing home face abuse and neglect. When such circumstances occur to someone you love, you feel a great deal of anger. While you may not be able to reverse the damage that has been done, be it physical or mental, but legal action can ensure that you and your loved one receives just compensation, as well as assurance that those responsible for the negligence are held responsible.

You can also hopefully avoid any such negligent behavior by choosing a nursing home that is adequately staffed. While there may be a variety of reasons staff members elect to neglect the patients in their care, it is understaffing itself that more often than not directly contributes to nursing home negligence.

Reasons Why a Nursing Home May Be Understaffed

There are many reasons while a nursing home may experience staffing issues and a general shortage of competent staff. For starters, there is a shortage of healthcare workers and nurse practitioners in the United States, with a great need to fill thousands of future positions in nursing homes and healthcare facilities.

The growth of nursing homes across the United States has created many positions that just aren’t being filled quickly enough. A new nursing home may appear clean, efficient and appealing, but you should also be sure that it is fully staffed before choosing to administer a loved one there.

A nursing home may also be understaffed if its employees aren’t paid fairly. Low wages can lead to a high turnover rate (not to mention the fact that it doesn’t give workers a great incentive to perform their job well). A high turnover rate also means new staff must be trained, which essentially means staff that is unfamiliar with your loved one’s particular needs and daily routine. Low pay could also result in not too many applicants accepting a position, as they may seek a position elsewhere for higher pay.

When visiting nursing homes for consideration, ask some of the staff how long they have been there, if they enjoy working there and if much of the staff has been there very long. If they answer honestly, you can get a good idea of how well the place may be staffed and if the staff is happy there.

A nursing home may also expect too much of its staff. A staff member who must handle multiple responsibilities that are better served by additional staff members is unlikely to have the time to sufficiently see to the need of his or her patients.

And finally, nursing home management may simply refuse to hire the proper amount of staff in order to keep profits high.

Negligence: The Unfortunate Consequence of Nursing Home Understaffing

As you might have now realized (or even experienced already with a loved one currently in a nursing home), understaffing can cause serious problems in a nursing home, especially patient neglect. Such neglect isn’t always intentional — as mentioned above, staff members can often be overwhelmed with many responsibilities and daily tasks, making it hard to give their patients the time and care they require.

Additionally, staff that isn’t treated properly by management or paid poorly can become disgruntled. As employee morale suffers, so too does their work ethic, and the overall work dynamic can lead to instances of abuse or neglect.

With many patients dependent upon nursing home staff for a large amount of care, neglect can lead to physical injury, psychological trauma and even death. Patients that are suffering from limited mobility are dependent upon their caregivers to help them move in order to avoid maladies such as atrophy or bedsores.

Additionally, receiving medication and food at the proper times, being provided with regular bathing and grooming, and help with going to the bathroom are all basic needs that can be overlooked or neglected due to understaffing.

Legal Repercussions of Nursing Home Understaffing

Nursing homes have a legal obligation to provide proper care for the patients within their walls. Failure to do so can often result in strict fines, and rampant episodes of neglect and abuse have served to shut down many nursing homes. Additionally, nursing homes have been sued for wrongful death and/or illness of patients in their care that suffered due to neglect.

With understaffing being recognized as one of the leading causes of abuse and neglect in nursing homes, it is being viewed more and more as a crime. Staffing violations should be reported so as to ensure that no patient suffers needlessly.

If you or a loved one has experienced abuse or neglect in a nursing home, contact the law office of Colucci Colucci Marcus & Flavin, PC. Our personal injury attorneys can help you take the necessary steps to receive just compensation and/or justice in cases relating to nursing home understaffing and neglect. You may call us at (617) 698-6000, or you can also contact us online to set up your free initial consultation.