Have Private Homes Become The New Safe Havens For Teen Drinking?

February 28, 2012

Social Host Liability

What is meant by social host liability? When used as a legal term it usually means that a homeowner or a member of the homeowners family has either served alcohol to a guest or supplied the alcohol that a guest consumed. The facts most frequently contain a description of how the guest consumed alcohol on the premises; how he became intoxicated and how he injured himself while driving home, or injured a third-party on the highway. The third-party could be driving another car or be a pedestrian. The host of the party could be a minor with or without his/her parent being home; or he could be an adult host making alcohol available to adult guests or to minors. The most troubling scenario for the states’ Supreme Courts has been when the drinking was at a home, but the alcohol was brought to the premises by the guests themselves, be they adults or minors. What is the responsibility of an adult host to an adult guest when the alcohol is furnished by the host? What if the guests are minors and they are given alcoholic drinks by an adult? Does that responsibility change if the guests bring their own beer, wine or liquor? Each state has different laws that govern this vexing topic. Part of the problem is that our fellow citizens are equivocal about the issue of drinking alcoholic beverages. Some people see drinking as a harmless social activity. Others see it as a right of passage as one approaches adulthood. Yet another viewpoint is that alcohol is “harmless or the least harmful drug” as compared to heroine, cocaine or marijuana. There are those that think alcohol should be heavily regulated and supervised especially when it causes so much death and destruction. MADD constantly lobbies that under age drinking is one of the biggest causes of teenage deaths. The people of Massachusetts are typical in their simultaneous holdings of  these conflicting views. The Massachusetts Legislature and the Supreme Judicial Court reflect this ambiguity and equivocation. At the present time, no homeowner in Massachusetts can be  held liable for a guest’s intoxication and injury to himself or others unless the homeowner serves the intoxicated guest or makes the alcohol available to her when she is visibly intoxicated. If the guest brings his own alcoholic drinks to a party held at a private residence there is no homeowner liability for the guest’s alcohol related injury; or the injury he may cause a third-party. For example, an inebriated guest crashing his car into that of another driver. Last week the Massachusetts SJC had another opportunity to clarify the law and the social policy upon which the law is based. It again visited the topic of alcohol consumption in the home by a  guest who ultimately becomes intoxicated. The name of the case is Juliano, et al v. Simpson, et al. Here are the facts: a 16-year-old girl was seriously injured when the car in which she was a passenger struck a utility pole. The driver was a 19-year-old who had brought alcohol to a party which they both had attended. The host of the party was another teenager whose parents where not at home. The father of the minor hostess was unaware of the party, and the drinking of alcohol at his home by underage guests. The question presented on appeal was whether the underage host and her absent father were liable for the alcohol related injuries to the two minors in the car. The plaintiffs asserted that, of course, they were liable because they controlled the premises at which the party was held. They should have done something to prevent the drinking or the intoxication or both because they controlled the property that was their home. The Massachusetts Supreme Court rejected the plaintiffs’ theory of liability and refused to find the defendants negligent. The court stated that “… if mere control of premises gave rise to a duty of care for social hosts, the difficulties facing judges and juries charged with ascertaining the limits of liability would be manifold… Moreover, we are reluctant to impose a duty of care in the absence of clear existing social values and customs supporting such a step.”  The Court invited the Legislature to amend the law regarding social host liability. It stated that the Legislature could more readily reflect the political and social consensus necessary before any changes are made to this evolving legal issue. In the meantime, private homes have become the new safe havens for teen drinking; and high school graduation parties are just around the corner.

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Punitive Damages Part 3

February 20, 2012

A few weeks ago, in part two of our discussion concerning punitive damages, I referred to a case that was before the Massachusetts Supreme Court. The case is entitled Rhodes, et al v. AIG Domestic Claims, Inc., et al. Last week the court announced its decision. It stated that under the Massachusetts Consumer Protection laws, Chapters 93A and 176D, insurance companies are required to negotiate in good faith. It also held that if liability is reasonably clear insurance companies must make a reasonable offer of settlement in an attempt to settle the case, prior to litigation. The court then went on to explain the consequences to insurance companies for refusing to obey the Consumer Protection laws. If a jury returns a verdict for the plaintiffs there may be punishment damages awarded by the trial judge in addition to the jury’s award of compensatory damages. The judge may hold a separate hearing on whether the insurance company engaged in bad faith and unreasonably delayed the settlement of the case or refused to engage in a good faith negotiations. In the Rhodes case,  the Massachusetts Supreme Court decided, in clear and understandable language, that the insurance companies engaged in bad faith and that punitive damages were appropriate. The S.J.C. in Rhodes has done more to redress the economic disparity between the powerful and the weak, and the rich and the poor, than all the legislation passed in Massachusetts in the past 20 years. There was no dispute about liability. The car occupied by Mr. and Mrs. Rhodes was rear-ended by a truck. Mrs. Rhodes sustained severe injuries. The jury returned a verdict, with interest, of approximately $11,000,000. Under the Consumer Protection laws the award may be doubled or tripled as a punishment and as a deterrent. The state Supreme Court decided that 2x the jury award was an appropriate remedy for the many years of delay caused by the insurance companies. The punitive damage award was $22,000,000. I previously stated, in Part 2 of our punitive damages discussion, that money is the only sanction that gets the attention of an insurance company. At least in Massachusetts, insurance companies now have a clear motivation to do the right thing. It just became more expensive to ignore the law than to follow its requirements. The total amount of money that the insurance companies are required to pay  Mr. and Mrs. Rhodes is approximately $33,000,000. This case is particularly significant for the little guy who gets hurt once when injured and once again when they just string it out and hope to lowball and stonewall him. Prior to this ruling, the Massachusetts courts were looked upon as paper tigers on the issue of 93A and 176D. All this case does is to bring the courts back into line with what is fair and reasonable.

Punitive Damages (Part 2): Talking Points.

January 23, 2012
  1. Punitive means to punish, to make an example, to change behavior by coercive means.
  2. The tool is money. The goal to make it more expensive for insurance companies and multinational corporations to ignore the law than to obey it.
  3. For example, Massachusetts has a Consumer Protection law that makes it unlawful for an insurance company to unreasonably delay a settlement of a case when liability becomes reasonably clear. Its purpose is to discourage insurers from acting in bad faith when negotiating a settlement of a personal injury case  before the start of a lawsuit.
  4. If a judge or jury, depending on the circumstances, finds an insurance company failed to make a reasonable offer of settlement when liability was reasonably clear then any judgment awarded by a jury can be multiplied 2x or 3x by the trial judge.
  5. This multiplication of damages is used as a punishment for the bad faith  and unreasonable delay of the insurance company, and for its failure to make a reasonable offer of settlement prior to the start of a lawsuit.
  6. Insurance companies are trying to change the rules in the Consumer Protection statutes. They want to reduce the monetary sanctions to such a degree that the monetary threat becomes meaningless.
  7. Money is the only sanction that gets the attention of an insurance company.The monetary sanctions for bad behavior must be substantial to change the behavior of billion dollar insurance companies.
  8. A case awaiting decision in the Massachusetts Supreme Court is Rhodes, et al v. AIG Domestic claims, Inc., et al. ( oral argument was heard by the court on October 6, 2011.) Insurance companies are seeking to eliminate “effective sanctions” that a judge, in his/her discretion, can impose. They advocate the elimination of punitive awards that are 2x or 3x the jury verdict.
  9. insurance companies want the court to substitute a sanction that would be meaningless and inconsequential as a deterrent.
  10. Insurance companies want to limit the sanctions to “the loss of use” of the money that a jury would award. This term is confusing and misleading. It sounds important but it is not an “effective” sanction. Its punishment is similar to fining a millionaire $10 for speeding. It is hardly a deterrent to a person with that economic clout and financial independence.
  11. The proposed new sanction would work as follows: assume a jury awarded as damages $250,000. The lawsuit took 3 years to complete. How much interest would be earned, at market rates, on the $250,000 over 3 years? For example, $250,000 x 3% interest=$7500 x 3 years=$22,500.
  12. Under the present sanction procedures a judge could multiply the $250,000 by 2x or 3x=a punitive damage award of $500,000 or $750,000. Which sanction do you think would change the behavior of a multinational corporation?
  13. The business plan of an insurance company is to earn money (profit) on the investment of premiums and the money its holds in reserve to pay claims in the future. The business model is as follows: the longer the insurer holds the money set aside to pay claims the more it can earn on the return of its investments in stocks and bonds.
  14. The financial expertise of an insurance company is not in its claims’ department; it is just a necessary evil to collect premiums for investment. The investing experts are in the finance and underwriting departments of the company.
  15. Without the present monetary sanctions in the Consumer Protection law there  is no incentive for an insurance company to pay claims promptly and fairly. The incentive is to pay as little as possible for as long as possible. No adjuster gets promoted for reasonably and promptly paying claims with money that could otherwise be used for investment purposes.
  16. The money “held in reserve” to pay future outstanding claims is held in a special reserve account of the company. These funds can be invested while the claims are pending, sometimes for many years.
  17. This money “held in reserve” is called “float”. Even though it is held in reserve to pay future claims, in the interim, it is “free” investment money that an insurance company can use to earn profits by investing in stocks and bonds.
  18. If one understands the investment plan of an insurance company then one can understand why most adjusters say “no” to fair settlements and why they try to “low ball” their settlement offers prior to a case actually being called for trial.
  19. Insurance companies have convinced trial judges and the general public that punitive damages are “unfair” and too draconian  a remedy to correct their occasional and unintentional bad faith behavior. If trial judges truly understood the business plan of insurers for settling cases they would finally realize that their behavior is premeditated. An insurer’s response to a plaintiff’s claim is to keep its money for as long as possible regardless of the merits of any individual claim.
  20. The business plans of insurance companies is based upon contravening the good faith and fair dealing requirements of Consumer Protection laws in each state.
  21. “Effective” deterrence is money that will compel a change in behavior. Those sanctions only exist if an independent trial judge is permitted to use his discretion to award multiple damages in personal injury cases.

by: Arthur F. Licata, www.alicata.com; arthur@alicata.com

Social Host Liability

January 10, 2012

What Is No Longer Sociable Or Permissible In The Consumption of Alcohol At Home

In the dog days of summer 2000, the Massachusetts legislature passed and the Governor signed a small but potent piece of legislation. An Act relative to the sale or delivery of alcoholic beverages or alcohol to a person under 21 years of age. It provides for criminal penalties when a homeowner, a social host, knowingly or intentionally supplies, gives, provides or allows a person under 21 years old to possess alcoholic beverages on property owned or controlled by him.  The likely target scenario is a private party at a home, an apartment or a condominium at which alcohol is available and where adults and minors are present.  The statute also provides criminal penalties for the direct and indirect sale, delivery, service, or furnishing of alcoholic beverages by an adult to a person under 21 years old at a commercial establishment.  In this instance, the likely scenario is a commercial bar, restaurant, or club in which an adult bartender or customer obtains or furnishes a drink to a minor.

It is a good law.  It will save lives.  Its text is one page.  Its ramifications speak volumes:

Whoever makes a sale or delivery of any alcoholic beverage or alcohol to any person under 21 years of age, either for his own use or for the use of his parent or any other person, or whoever, being a patron of an establishment licensed under section 12 or 15, delivers or procures to be delivered in any public room or area of such establishment if licensed under section 12, 15, 19B or 19C or 19D or in any area of such establishment if licensed under said section 15, 19B, 19C or 19D any such beverages or alcohol to or for use by a person who he knows or has reason to believe is under 21 years of age or whoever procures any such beverage or alcohol for a person 21 years of age in any establishment licensed under section 12 or procures any such beverage or alcohol of a person under 21 years of age who is not his child, ward or spouse in any establishment licensed under said section 15, 19B, 19C or 19D or whoever furnishes any such beverage or alcohol for a person under 21 years of age shall be punished by a fine of not more than $2,000 or by imprisonment for not more than one year or both.  For the purpose of this section the word “furnish” shall have the following meaning: to knowingly or intentionally supply, give, or provide to or allow a person under 21 years of age except for the children and grandchildren of the person being charged to possess alcoholic beverages on premises or property owned or controlled by the person charged.”

In the past, it was civilly unlawful to serve or furnish alcohol to a minor in a commercial establishment when its employees knew or should have known that an adult intermediary was purchasing an alcoholic drink for a minor.  (see Tobin v. Norwood Country Club, 422 Mass. 126 (1996) If that same act had taken place at a private residence there was nothing in civil or criminal law to prevent it.

In the recent past, the illegal consumption or possession of alcohol by a minor at a private residence was not a violation of either criminal or civil law-for either the minor or the adult social host.  The only exception was if a social host directly placed an alcoholic beverage into the hands of a minor or adult who was visibly intoxicated.  As a result, private residences became a haven for illegal drinking on the part of minors and adults.  This law partially closes that legal loop-hole.

Now, it is a misdemeanor (a fine not more than $2,000 or imprisonment for not more than 1 year) for a social host to permit a minor to possess alcoholic beverages on his/her property.  A social host is a person who owns or controls property at which alcoholic beverages are being served or are available.  The legislation provides the practical backbone and rationale for social hosts to prevent their children, and the children of their friends and neighbors from possessing or drinking alcoholic beverages at their social gatherings.  It will encourage cooperation among neighbors and parents to prevent their children’s illegal possession or consumption of alcohol at one another’s homes.

The at-home consumption of alcohol by minors is an old problem.  It has become egregious in recent years as families have two parents working or, a single parent working fulltime.  There are typically two situations where problems occur.  In the first, a social host permits minors to possess or drink alcoholic beverages at a social gathering held at her home during, for example, a graduation party.  Adults and minors attend the party.  Alcoholic beverages are provided to the guests by the social host.  In the second instance, a homeowner does not actually give permission or furnish alcoholic beverages to the minors.  The minors bring the alcoholic beverages to the home or social gathering to be consumed there by them.  Under the new law, a social host may be criminally liable merely for “allowing” the minor to possess alcohol in her home.  Ironically, under Massachusetts law as it now stands, a social host may be criminally liable in this situation, but not civilly liable, since she did not directly serve an intoxicated minor.  It is unclear, at the moment, how far the courts will extend the reach of the statute.

This legislation was passed, in part, to answer the following question:  how does society protect its children from the known ravages of intoxication?  The illegal consumption of alcohol by minors causes harm to themselves and to those with whom they come in contact when they are intoxicated.  We know children are particularly susceptible because of their age, inexperience, and lack of judgment.

The new law is certain to generate controversy.  Some parents believe it is safer for their teenage children and their friends to drink at home.  If the minors have a “few” beers under parental supervision at least the children are protected.  The parents know where their children are and feel reassured that they will not drink and drive.  It is the judgment of these parents that such a scenario is preferable to having their children illegally obtaining alcohol somewhere else and running the risk of driving while under the influence of alcohol.

Other parents are outraged at such behavior.  For them there is still the danger that many of these teenagers will drive while intoxicated to and from this “safe” party.  They also see it as undermining their parental authority and at odds with their strongly held beliefs concerning their children’s physical and emotional wellbeing.

Police, on the other hand, will applaud the law.  As a result of the carnage on the highways, many police departments in the Commonwealth have adopted a “zero tolerance” policy concerning the consumption of alcohol by minors.  The police have strictly enforced the laws against drunk driving and drinking by minors in parks and other places of public accommodation.  In the past, the reaction of parents has been mixed.  Some are very supportive.  They encourage the police.  These parents see the problem as a public health issue that affects their children’s lives, and the lives of everyone in the community.

Other parents have been more ambivalent towards the police’s “zero tolerance” policy.  In some respects, these parents see alcohol as a safe drug.  It is not heroin or cocaine.  It does not bring to mind crack houses, emaciated addicts or hypodermic needles.  They view alcohol consumption by teenagers as a right of passage. Many parents would not even list alcohol as the legally regulated drug that it is.  This ambivalence is at the heart of the matter when parents instruct their children about the use and abuse of alcohol.

In addition, some parents see “zero tolerance” enforcement as unnecessary.  They believe that a more “cooperative” spirit should exist in which their children are not arrested but merely held by the police without being “booked” until such time as their parents can come and get them.  Some parents have even become hostile to the whole notion of police enforcement.  They argue that any criminal offense will have severe repercussions concerning their children’s ability to get into a good college.

Will the law stop underage drinking? It is unlikely.  Minors are presently receiving too many mixed messages about alcohol consumption.  At best, parents seem to be saying, do as I say not as I do.  At worst, parents are tacitly condoning their children’s drinking as long as it does not become a behavioral issue at home.  Unfortunately, Americans have a deep cultural bias toward using alcohol as a lubricant for social interaction.  It is advertised as a means by which adults can unwind from the pressures of daily living.  In that sense, adults are modeling to their children their own learned behavior about alcohol consumption.  If children examined these parental assumptions too closely it would make their parents extremely uncomfortable.

This social ambivalence toward alcohol is reflected in the laws of the Commonwealth.  The legal term for a homeowner’s civil liability concerning the  consumption of alcohol on his premises is called “social host” liability.  The Supreme Judicial Court has state that a homeowner can be held liable only when he directly serves an intoxicated guest an alcoholic beverage at a time when the host observes the guest to be visibly intoxicated.  The mere consumption of alcohol at a private residence by an intoxicated guest will not make the host liable for any alcohol related injuries to the guest;  nor will it make the homeowner liable to anyone the guest may injure as a result of the guest’s intoxication.  The social host “immunity” for the most part has been applicable whether the guest was an adult or a minor.  This is one reason why graduation parties have become such a problem for local police departments.  The private home had, in an odd and unintended way, become a safe haven for illegal drinking by minors.  Sometimes there was adult complicity or tacit acceptance of the consumption of alcohol by minors.  At other times, hosts turned a “blind eye” to the minors’ activity.  The behavior was tolerated for a variety of reasons.   Sometimes it was socially too awkward to address the problem; sometimes the hosts could not control the behavior of the minors in attendance.  At other times, the homeowners were unwilling to risk a public confrontation with friends and family.  These parties frequently had “open” or self-service bars in which it was easy for teenagers, as well as adults, to obtain and consume a variety of alcoholic beverages.

This apparent license to countenance activity in the home that is not lawful in public accommodations has been reaffirmed in recent months.  The Supreme Judicial Court decided in the case of Luoni v. Berube, 431 Mass. 729 (2000) that social hosts were not liable to a guest who was injured at a Fourth of July party by fireworks brought to the party.  The fireworks were set-off by other unidentified guests without the hosts’ permission.  The court held:

The defendants did not furnish the fireworks or give permission for the display on their property.  Their status as social hosts carried with it neither the means, nor the legal obligation, to supervise or prevent the discharge of the fireworks by others.  See Ulwick v. DeChristopher 411 Mass., 401, 406 (1991).  Were the rule otherwise, injuries to guests at parties would lead to considerable litigation, with plaintiffs claiming that social hosts should have supervised guests who misused alcohol, not furnished by the hosts, set off fireworks, not provided by the hosts, played dangerous games, engaged in horseplay around swimming pools, and so forth.” Id. at 734.

With the advent of this criminal statute it is now a misdemeanor for adults to permit minors to consume alcohol at home.  There now will be serious consequences if the homeowner does nothing.  He can be fined, and go to jail.  He may also face substantial civil damages for which he may not be insured.  These not insignificant consequences will make homeowners more likely to monitor alcohol consumption at their parties.  They will also make it more likely that social hosts will say something to friends, neighbors and relatives when alcohol is used by minors, or abused by adults.  In a sense, the statute will provide “social cover” for homeowners.  In order to protect themselves from criminal liability they will have to protect their guests.

Due to the new law, there are a myriad of issue the courts and the insurance industry will need to address in the coming months.  What is the effect of this criminal statute on the civil liability of homeowners?  Will the Supreme Judicial Court expand its interpretation of social host liability in light of this criminal statute?  Since a violation of a criminal statute is some evidence of negligence in the courts of the Commonwealth can civil litigants bring successful lawsuits against social hosts without waiting for a decision from the State Supreme court?  Can plaintiffs in a civil suit state a claim upon which relief can be granted sufficient to resist a motion to dismiss or a motion for summary judgment?  Will the current homeowner’s liability insurance policies provide coverage if there is civil liability?  Absent specific terms of exclusion relating to the consumption of alcohol in a homeowner’s insurance policy isn’t there already insurance coverage for any judgment against the homeowner?  If a homeowner’s insurance policy contains language that excludes coverage for any “injury caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of any insured” does the violation of this criminal statute preclude coverage?  Does it make any difference that the statute is used to prove only some evidence of negligence on the part of the homeowner as opposed to negligence per se?

In the collegiate rich environment of metropolitan Boston, the consequences of this legislation are also likely to ripple throughout the academic community.  There has always been a problem on college campuses with underage drinking.  This problem has been compounded because of the age differential of college students during the course of their academic careers.  Freshmen typically enter college when they are 18 years old. During the course of their sophomore and junior years they are likely to be 19 and 20 years old respectively.  It is only when students become seniors that they reach the legal drinking age of 21 years old.  Sometimes they turn 21 only at the end of their senior year.

Of course, the fact that under-age students consume alcohol on and off campus is not new to parents, educators or students.  In light of this legislation, the consequences will be new, and perhaps unanticipated.  Imagine a college senior, a member of the football team, who is attending school on an athletic scholarship.  He takes his freshman girlfriend to a neighborhood bar.  The senior who is 21 years old walks to the bar and buys two glasses of beer.  He brings them back to his table in the crowded bar and gives one of the beers to his date.  The senior has just committed a misdemeanor for which he can be fined and imprisoned.  If he is found guilty he could lose his eligibility to play football, be suspended from college, lose his scholarship, go to jail or all of the above.  If the bartender served the same two students at the bar and did not ask for an ID to check their ages he also committed a misdemeanor.  As a result he could lose his job and the bar could have its license suspended or revoked.  If the two students continue to drink at the bar and became intoxicated, the consequences for the bartender and for the owner of the bar could be substantial.  They could include both criminal penalties and civil damages if the students injure themselves or others due to the intoxication.  Adding insult to injury, since the bar’s employees violated a penal statute by serving the underage freshmen the insurance company for the bar may deny coverage under its policy of insurance due to the violation of a penal statute.

If one moves the locus to an on-campus bar, a fraternity party, a college dorm or an off-campus apartment the opportunities for the statute to be violated by students are obvious and almost endless.  Parents would be surprised to receive a telephone call from a police station informing them that their son was being charged with a crime.  They would be further shocked to learn that they needed to get their son a criminal attorney to represent him at a District Court bench trial for a violation of a misdemeanor that could send him to jail.

The criminal responsibility of a university may also become more acute since the mere possession of alcohol by a minor on property owned or controlled by the one charged is a violation of the statute.  Suppose the state police received a credible tip that there is a university reception at which minors are seen “in possession” of alcoholic beverages.   Could the faculty advisors at the reception, the Dean of Students or the University Trustees be charged with a violation of the statute?  After all, the law holds responsible those who “control” the property.  What happens if the students’ intoxication causes injury to innocent third parties?  Can the violation of the penal statute be introduced in the civil proceedings against the university as some evidence of its negligence in “furnishing” alcohol to a minor?

The courts are likely to provide guidance to these questions in the coming years.  At present, one thing is clear.  The Massachusetts legislature has taken a forceful step against adults who are responsible for furnishing alcohol to minors.

A Winning Attitude: Preparation for Trial

December 22, 2011

A Winning Attitude: Preparation for Trial

Based Upon The Book: The Mental Game of  Baseball by Dorfman and Kuehl

Annotations By Arthur F. Licata

1. The success we achieved in the past is more important than the failures we fear in the future.

2. Confidence: an attitude; the feeling a player has that he will perform well.

3. To go in to a competition with a sense of positive anticipation and well-being.

4. The typical athlete goes all out in competition. That’s easy. The exceptional athlete goes all out to prepare for competition.

5. The most prepared are the most dedicated.

6. Timing-knowing when you are ready.

7. The mind needs a warm-up as well as the body.

8. Create a mental state of mind that produces a calm, quiet confidence.

9. develope a mental peacefulness generated from complete preparation and then the time to quietly relax the mind through meditation.

10. Every “game” is prepared in the same way. Consistency and the repitition of successful physical acts and mental images lead to more success.

11. Develope consistency whether it is in practice , a regular game or the “Super Bowl”.

12. Good habits, practiced over and over again, lead to a winning way.

13. Visualization: the process refers to the ability to recall information in physical forms and images instead of words. A person mentally “sees” and experiences a winning sensation.

14. Use your imagination to mentally see all that you do and all that flows through you to create a winning experience mentally even before it physically happens.

15. Visualization: it programs the nervous system, muscles and fibers of the body.The cleaner the image-the more detail-the greater the effect upon the body’s readiness to perform successfully.

16. Imagination can trigger nerve and muscle response.

17. Your heart, breath, nerves and muscle all get their images from the internal pictures you draw and send to your nervous system.

18. To win you first must win in your “mind’s eye”.

19. Perform mental replays of successful performances.

20. See and Feel yourself performing just the way you want.

21. See yourself winning before you even begin to compete.

22. We realize that some conditions and problems are uncontrollable. But, when we control our reactions to problems and adversity we are controlling their effect upon us. How we act and react will illustrate the degree of our self-control and our mental discipline.

23. Pattern of control: control our awareness; control our thoughts; control our self-talk; control our behavior-mind/body connection. Thoughts influence the body and the body influences one’s thoughts.

24. We need balance. The pressure to perform successfully should not be too high and not too low. The goal is to maintain an even strain. A mental state of equilibrium.

25. Emotional trouble begins and stress and anxiety escalate when a person starts to concentrate on what the opponent might do; or what is happening to himself rather than on what he wants to make happen.

26. Control is lost when a person’s feelings and thoughts focus on consequences, e.g. catastrophic thinking.

27. Bad feelings are hard to control. The baseball pitcher, Tom Seaver, admitted: “You feel it is all hopeless. you want to quit. You have to force yourself to forget and start over as if it never happened.

28. Be intense without anxiety.

29. Negative thinking. Man is what he believes. The immune system and the nervous system are connected. What happens to one affects the other.

30. Breathe: a simple calming and awareness technique.

31. Pressure; antidote – preparation for performance.

32. Challenge and not a danger. Those who enjoy the challenge enjoy it because they interpret it as a challenge and not as a threat!

33. Positive self-talk: a calming and refocusing technique.

34. Fear of failure and imagined consequences create pressure.

35. Some sources of fear: the expectations of others.

36. Positive pressure: being “up” for a game.

37. Negative tension: fear of failure; the expectancy of the inability to perform, e.g. “choking”.

38. Resetting your balance.

39. Getting away from the source of the pressure.

40. Moving and stretching.

41. Visualization.

42. Tensing and relaxing.

43. Talking out loud.

44. Controlled breathing.

45. Really concentrate on the task and then let it go.                                                 Become “in the Zone.” Yogi Bera said: “why think?”

46. Loss of performance can be initiated by  a loss of self-confidence.

47. There is the danger of over-thinking a problem.

48. Practice and preparation create in a person a habituated winning behavior.

49. Muscle memory subconsciously wins before the act of doing is ever begun.

50. Anger: It creates a self-fulfilling behavior of failure. Inner intensity is a characteristic of all great athletes if it is applied to their performance in a positive way. These outstanding athletes do not punish themselves or put their emotions on parade. They examine what has happened during their performance in a rational way. They work at improving or fixing it. They know that anger makes it more likely that they will make another mistake. They will be distracted by what they just did and not focus on what must be done.

51. A mistake can be a learning experience to improve one’s performance. A mistake is not a value judgement on the person and it does not make him a failure because he made a mistake-especially if he learns from his mistakes.

52. The golfer, Jack Nicklaus, believed that instead of becoming emotional in a situation that might provoke another golfer to anger, he simply concentrated more on the task at hand. Athletes that learn to do that perform marvelously under pressure.

53. Pain: The yogis in India learned to enable the mind to exert control over the body’s autonomic nervous system.

54. Mental discipline and pain control. Mantra: I am performing pain-free; I am strong and healthy; I am healing more and more each day; My body is healthy and pain-free; I am healing and nurturing my body.

55. Start with relaxation and then move on to visualization. Feel yourself becoming warm, calm, quiet and relaxed. A relaxed person is a confident person. Confidence and a positive attitude result in the lowering of anxiety and thus lessening interference due to antagonistic muscle tension or the loss of one’s ability to direct and control his undivided attention towards the task at hand.

56. The striving for excellence is the enactment of the player’s idea of winning. The right results come from the right approach.

57. When you know the right way, and you know you want to go that way, there is no acceptable reason to make any other choice.

58. One must learn to accept adversity as part of the game of life; do not magnify the adverse conditions and seek sympathy.

59. Ingredients for winning: set the goals; set your goals and not the goals of “others”. Have the determination and committment to do the work necessary to succeed. Accept responsibility: to be responsible for what one does.

60. Attitude: a positive state of mind.

61. Confidence.

62. Learning: they know enough to learn how.

63. Preparation.

64. Mental discipline.

65. Self-esteem: how one thinks about oneself has an impact upon his thoughts and actions.

66. Learn to win or failure becomes a self-fulfilling prophecy.

67. Winners think of problems not as negative factors or obstacles but as challenges to overcome.

68. Failure is part of learning; just do not repeat past mistakes.

69. Winners are exceptional because they meet life’s challenges-they do and act-with positive thinking.

70. The effective integration of one’s mind and body can maximize one’s potential.

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Medical Information: Proof of Damages

December 2, 2011

Case evaluation, prior to accepting a client and executing the contingency fee agreement, frequently requires the preliminary assembly of medical information.  This preliminary evaluation process of medical information is all the more necessary when determining whether to accept a medical malpractice case.

It is good practice to retain a nurse and/or doctor to review the medical records and to assist in evaluating the potential case from a medical perspective.

The basic factors which are used by experienced trial counsel in evaluating large cases are the same fundamentals they use for analyzing their smaller cases when they were not so prominent.

A case is “small” in terms of economic value usually because the injury is not severe; the injury has successfully healed; there is little long-term disability; there is a lack of chronic pain or restriction of movement; or the economic value of the medical care is modest.

Smaller cases are useful preparation for attorneys to learn the skills necessary to handle major litigation.   The presentation of small cases is in fact, necessary for the artful maturation for one to become an experienced trial counsel.

I. How to Collect Medical Information

The initial source from which one obtains medical information is the client.  The process should begin at the initial client interview when the attorney asks questions of his client about the accident and the injuries caused by it.  The initial consultation can be augmented by giving the client a questionnaire to complete which inquires about the client’s current medical condition, medical history, present disability and associated pain.  This is a low-cost effective way to begin documenting your client’s medical damages.

The second procedure which should be completed at the initial consultation is to have the client sign medical authorizations so that you can obtain photocopies of his/her medical records from all of the pertinent health care providers.  These health organizations include:  doctors, hospitals, clinics, physical therapists, specialists and/or consultants, nursing homes, chiropractors, social workers, psychologists and psychiatrists, dentists and pharmacies.

When requesting medical records from a hospital, it is particularly important to send medical authorizations to each of the following departments:  medical records, radiology – for copies of x-rays and the accounting or billing department.  Though each patient is entitled to receive a photocopy of his medical records there is a charge for photocopying the record and for the cost of copies of x-rays.  By-laws of the Massachusetts Board of Registration and Discipline, approved at its meeting September 22, 1978, and M.G.L.c. 111 section 70.

It is important to be specific and careful concerning the information which you are seeking.  Many hospital administrators do not consider an accident and/or incident report, nurses’ or doctors’ notes of an accident, autopsy reports or peer review committee minutes as part of patient’s “medical record.”  It is better to ask for it with the following phrase “. . . including but not limited to the (e.g. autopsy) report . . . ”

Query:  From whom should you request medical information?

You should request records from the doctor(s) and hospital(s) which treated your client after the accident, but do not overlook the records of care-givers such as physical therapists, rehabilitation hospitals and family doctors.  Pre-accident medical records are important in that they 1.) provide an accurate picture of your client’s medical condition prior to the accident, and 2.) test the veracity of your client’s rendition of the facts.

This preliminary review of the medical records is an absolute necessity, perhaps more so in medical malpractice cases, and will assist you in determining whether or not your client has a viable claim.  The review process will also assist in identifying liability issues which may be contained within the medical history.  As the medical record is assembled it will document treatment, conscious pain and suffering, mental anguish, pain associated with the treatment, rehabilitation, disability issues and support the damage portion of the case.

II. How to Use Medical Records

A.     In order to admit the hospital records themselves, M.G.L.c. 233, section 79 provides an exception to the hearsay rule.  In order to be admissible, the hospital records must be kept pursuant to M.G.L.c. 111, section 70.  Out of state hospital records also appear to be admissible if they are kept in a manner similar to the dictates of M.G.L.c. 111, section 70.  (see, Commonwealth v. McDonough, 400 M639, 642 (1987); Commonwealth v. Sargent, 24 Mass. App. Ct. 657 (1987)).

A client’s medical record is necessary to establish the causal relationship between her accident and her resulting injuries.  It not only provides the factual underpinning upon which a doctor can render an expert medical opinion, but also provides objective documentation to which the doctor can refer for her diagnosis and prognosis.

B.     The jury, in its common knowledge, cannot determine whether the injuries suffered by the client are related to the accident.  This type of expertise is beyond their province and requires expert testimony by a qualified physician.  Thus, it is necessary to introduce medical records into evidence at trial.  A doctor can testify about his treatment and use his office notes to refresh his memory.  He can also state what he charged for his services.  The hospital record is subpoenaed into trial by the plaintiff, and is usually brought to the court clerk’s office by hospital personnel.  If appropriately documented by the subpoena, the record can then be offered into evidence by plaintiff’s counsel.  Medical bills can be automatically admitted into evidence through the affidavit procedure by M.G.L.c. 233, section 79G.  These records must be admitted into evidence so that they can be referred to during trial testimony.

The doctor, either treating physician or retained expert, uses the plaintiff’s medical record to objectively document pain and suffering, disability, limitation of motion, the need for specialized prosthetic devices, home care, modified home environment, nursing or rehabilitative institutional care, limitations on work capacity or types of occupations, learning disabilities and emotional and psychological impairments.

Medical testimony and the extent of injury is often explicated by the use of photographs.  Some doctors, particularly plastic surgeons, take photographs to show the before and after results of their work; photographs taken by family members or by professional photographers showing injuries sustained by your client can help to illustrate the doctor’s testimony.  3 Wigmore Evidence, section 795 (photographs of injured or mutilated parts); trial judge’s discretion as to the admissibility of photographs, Commonwealth v. Bys, 370 Mass. 350 (1976); exhibition of a person’s injury constitutes direct evidence of a material fact, Commonwealth v. Woods, 339 Mass. 7 (1959); photographs, skeletons, medical charts used as chalks at trial, Peloquin v. Robert Northbridge Furniture, 343 Mass. 317 (1961).

Practice Tips:  Retaining a nurse practitioner or a rehabilitation therapist to review and interpret the medical records can be very helpful.  These professionals can also assist the attorney in understanding what the medical terms mean in order to accurately and persuasively document the treatment rendered.

No Fault Insurance Law:  A plaintiff is required to have at least $2000.00 of reasonable and necessary medical expenses, or a fracture or scarring before he is permitted to bring a lawsuit for pain and suffering against the defendant as an operator in an automobile accident.  M.G.L.c. 6D;  Victum v. Matin, 367 Mass. 404 (1975);  Pietroforte v. Yellow Cab of Somerville, 19 Mass. App. Ct. 901 (1985)

III. The problem Areas in Medical Records

A.     There are, at times, inaccuracies in a medical record which often cause the plaintiff’s attorney difficulty.  The medical history section of the hospital record is the place where the accident is described.  Harried emergency room personnel who have little time and concern for the details of the accident, often transcribe their impressions in shorthand phrases which are, at worst, wrong and, at best, misleading.  The victim often is not the most coherent transmitter of information because he/she is seriously hurt, in pain, and/or in shock.

The nurses’ or doctors’ notes can contain inaccurate descriptions of liability issues and/or pre-existing medical problems.  On the other hand, these same liability notes, if supportive to the plaintiff, are admissible.  If a doctor testifies that he used information about the accident to help him determine his course of treatment, this information can be offered into evidence by either the plaintiff or defendant at the discretion of the trial judge.   Commonwealth v. Sargent, 24 Mass. App. Ct. 657 (1987);   Wright v. Precast, Mass. App. Ct. 1014 (1985);  Terrio v. McDonough, 16 Mass. App. Ct. 163, 175 (1983);  Commonwealth v. Perry, 385 Mass. 639, 641, 642 (1982).

B.     Pre-existing medical conditions which are the same or similar to the condition for which the plaintiff is seeking damages can also create problems.  A typical situation is as follows:  the plaintiff claims a herniated disc as a result of his/her accident but the hospital records, x-rays, radiologist’s reports and family doctor’s records indicate she was treated for the same condition several years prior to the accident.

If the plaintiff’s attorney is faced with this situation there is still a tactical way in which to handle it.  It is credible to state that the pre-existing condition was asymptomatic, that it caused the client no problems in her daily life prior to the accident, and/or that the problems associated with the pre-existing condition were transitory or intermittent and are now chronic and permanent.  The plaintiff’s doctor is then in a position to testify that the person’s injuries are an aggravation of a pre-existing condition and that what was once intermittent, is now a chronic and permanent condition.  Wallace v. Ludwig, 292 Mass. 251, 256 (1985).

C.     Negative or equivocal remarks by the client’s treating physician can lessen the strength of her claims.

In some instances the treating physician is unwilling to state or to opine that the plaintiff’s condition is causally related to the accident.  The doctor refuses to cooperate with plaintiff’s counsel, refuses to find that the accident contributed to the disability and is unwilling to testify in court.

This reluctance of doctors to cooperate with plaintiff’s counsel is now pervasive due to negative insurance company advertising, increased medical malpractice insurance premiums and a developing disdain on the part of health care providers for the legal system and in particular the attorneys who practice in the personal injury area.

IV. Medical Records Are a Necessary Pre-Requisite for a Doctor to Render an Expert Medical Opinion

A doctor retained by either party is usually asked to render an expert opinion in two parts:  1) the injuries are causally related to the accident; 2) the diagnosis, prognosis and pain and suffering associated with the injury which can be used by the jury to evaluate the appropriate damage award.  A defendant is liable to the plaintiff for reasonable compensation for pain and suffering caused by the defendant’s negligence.  Past as well as future probable pain and suffering may be a part of the plaintiff’s damages.   Cuddy v. L & M Equipment Co., 352 Mass. 458 (1967).

Doctors are frequently retained to render expert medical opinions (pre-trial for settlement purposes), for litigation purposes and ultimately for trial testimony.  The availability and cost of expert medical opinions is beyond the scope of this monograph.  Suffice it to say that you should obtain the best doctor you can find and work with him/her as closely as possible.  A review of the medical records with your client’s treating physician or a doctor retained for expert testimony is mandatory.

The better you comprehend the record and know its contents, both pro and con, the better prepared you will be to use its contents in the presentation of your case.

V. How to Order Medical Records – What to Ask For

You want everything and its a pain in the neck to obtain it.  You should keep track of what you have ordered and which health care providers have responded or failed to respond.  If possible, and if you believe your client is capable, have him/her obtain their own medical records.  The benefits are better service from the hospital, less antagonism from hospital personnel, quicker assembly of the record and decreased costs to you because the clients pay for them.

You must always read the records when they are received.  Sometimes pages are missing – sometimes pages are illegible.  If the words are unclear it is important to know what is written and what it means.  A doctor may purposely obscure a term or an entry.  If necessary, the doctors should be deposed and required to clarify the medical terms and interpret the record.  Photocopies are frequently so light that subsequent copies for office use will be difficult to reproduce.  You should check dates:  when the operation was performed, when the operative note or autopsy report was dictated and when it was transcribed (especially in medical malpractice cases).  Check the dates and the name on the x-rays; ask the hospital radiology department to make a complete copy of the x-rays and bill you for them.  Be prepared to pay in advance for medical records and x-rays and doctor’s reports.  X-rays can be made into positive prints by a reputable photo lab and used for settlement purposes, for review with your experts or as guidelines for medical illustrations.

The discharge summary of a hospital record is that part which briefly summarizes the course of the patient’s treatment while in the hospital, but it is by no means the complete hospital record.  Its use may be compared to one reading a book review instead of the book.  A good claims adjuster will not be satisfied merely with the discharge summary.

To increase its usefulness, the medical record should be segregated into its component parts for easy reference.  A medical record should be separated, tabbed and indexed so that it is easily digestible by laymen and experts alike.  This is particularly useful since different people will have greater need or place grater emphasis on different segments of the record.  A basic format could be organized by subject matter:

i.     admit sheet

ii.    operative note

iii.   consult notes

iv.   pathology reports

v.    radiology reports

vi.   nurses’ notes

vii.  medication records

viii. x-rays

ix.    doctors’ notes

x.     test results and reports

xi.    incident/accident reports

xii.   peer review committee minutes

xiii.  autopsy report

xiv.  discharge summary

xv.   accounting/billing records

VI. Medical Reports – Does One Need Them?

One should distinguish between a patient’s medical records and medical reports which are prepared by a doctor upon request.  A doctor can charge the requesting party a reasonable fee for his time spent reviewing the patient’s record and preparing a written report.

A medical report is usually a typed document prepared by a doctor at the request of an attorney.  If it is written by the treating physician it is usually discoverable as part of his office records.  If the treating physician is retained by the plaintiff’s counsel as his medical expert, it is more likely the report can be kept confidential, but there is no certainty under the discovery rules in this regard.  The use of a treating physician as an expert is preferable to an outside doctor since he is retained for treatment by the client rather than being hired by the client’s lawyer for litigation purposes – the classic hired gun.

If an expert medical report is written by a person specifically retained by an attorney it is frequently discoverable pursuant to M.R.C.P. 35(b) and 26(b)(4)(a&b). (see also, 7 Mass. Rules (Smith and Zobel) section 26.6; 35.6; 35.7)).

Practice Tip:  It is a good idea to communicate by telephone, in person or by correspondence with the doctor from whom you are seeking a report.  It is helpful to outline for him/her the general context of the case; provide for his/her review a photocopy of the pertinent medical records, and if necessary, x-rays; and arrange for him/her to examine your client.  The client examination is frequently delayed until right  before trial by some attorneys to save money, but this procedure is often awkward and it tends to undermine the credibility of all concerned.

A doctor’s report usually contains a history, a summation of the medical treatment to date, an examination and testing of the patient with the notation of significant findings, a diagnosis and prognosis.  The prognosis may discuss future care, disability and the costs associated with treatment.

If the future projected care is substantial, a medical economist can use the doctor’s report to project the reasonable and necessary medical costs for future care.  A vocational specialist can use the doctor’s report as the factual foundation for his opinion relating to employability and task function in the open job market.

Language limitations and translation difficulties or misunderstandings can create serious problems if not carefully addressed.  You should accompany your client or have a nurse practitioner go with him/her to the examining physician’s office.  This is particularly important when the examination is being performed by a physician retained by the defendant’s attorney.

It is safe to assume that all expert reports are discoverable under certain circumstances.  You may want to consult with the doctor verbally to review her findings, prior to preparing a written report.  You may also decide that a written report is unnecessary or counterproductive.

Although medical reports are not admissible into evidence, medical treatises, periodicals and books are admissible pursuant to the guidelines of M.G.L.c. 233, section 79c.

VII.  Why Do You Need Medical Records to Substantiate Damages

The basic elements of damages in a personal injury case are:

A.  medical care:  past, present and future

B.  pain and suffering:  past, present and future

C.  disability:  past, present and future

D.  lost wages:  past, present and future

Medical records are the foundation on which one factually and objectively quantifies the areas for which you want the jury to award damages.  They are used by one’s experts to substantiate their opinions and to assist in corroborating the testimony of the plaintiff and his/her family.

Experienced defense attorneys also use medical records.  A defense attorney is entitled to receive and review, pursuant to M.R.C.P. 34, the medical records of your client because the medical condition of the plaintiff is a fact at issue in a personal injury case.  The defense attorney, pursuant to M.R.C.P. 35(a) is entitled to request a physical examination of the plaintiff by a doctor retained by him.  The court will uphold this request by a suitable motion for discovery filed by defense counsel. When the defendant’s doctor examines your client you are entitled to receive a photocopy of the examining physician’s report pursuant to M.R.C.P. 35(b).

Psychiatric medical records can be particularly troublesome.  Psychiatry is an interpretive art as much as it is a science.  Psychiatrists and psychologists are prone to couch their language in terms of equivocal phrases or in terms of possibilities as opposed to probabilities.   This may be explained by the interpretive manner of the profession but it plays havoc with a litigator presenting evidence to a jury.

Practice Tip:  The concern to the practitioner is that opinions relating to a person’s psyche sometime rebound against the interest of the person seeking the opinion.  Once an opinion is rendered by a mental health professional it is difficult to overcome it if it casts a negative impression upon the client.

This same negative effect can often be created by a defense attorney in the following way:  The plaintiff has physical and emotional injuries.  Some of the physical injuries are not readily apparent:  migraine headaches and chronic back pain.  The emotional injuries manifest themselves in depression and family quarrels.  Plaintiff’s counsel in his zest to validate the veracity of his client’s emotional deposition testimony relating to emotional trauma sends her for a psychiatric evaluation.  The psychiatrist states that the client is depressed because she is suffering from a lack of a positive self-image which may be related to the injuries she suffered in her accident.

The defense attorney then moves to have her examined by a psychiatrist under the guise that her emotional state is an issue in question.  The defendant’s psychiatrist then writes a report that states that the plaintiff’s emotional problems pre-existed her accident and that her physical conditions are psychosomatic – that is, she evidences bodily symptoms and/or emotional symptoms as a result of mental conflict.  In this fashion the defense seeks to undermine both the bodily and emotional injuries for which the plaintiff seeks compensation.

One should note that even the best case can be destroyed by overreaching on medical causation and damages, and by under preparation of medical experts prior to writing an expert opinion or testifying at trial.

VIII.   The Treating Physician v. The Hired Gun

A rule of thumb:  the treating physician usually has greater credibility than a doctor specifically retained to review the medical records, examine the client and state an opinion for a fee.

If plaintiff’s counsel cannot secure anyone but an independent expert, the treating physician should be asked to make a referral or request a consult by the person proposed by counsel.  The consult can then be entered in the plaintiff’s medical record as a referral from one physician to another.

Treating doctors tend to be less antagonistic towards plaintiff’s attorney if they have been forwarned well in advance that they will be receiving a subpoena.  Whether it is the plaintiff’s attorney or the defendant’s attorney who is issuing the subpoena, a quick telephone call from you can only help.

It is also important to note that the preparation of the medical expert with the hospital records prior to his/her deposition or trial testimony is an optional procedure, but an absolute necessity.  Trial experts are a difficult and exhausting breed to properly prepare for trial;  they must be encouraged and at times spoon-fed the medical information upon which they must base their medical opinion.

The best protection for the experienced trial counsel and his medical expert is for the doctor to be told everything:  “the good, the bad and the ugly.”  He should receive photocopies of the plaintiff’s deposition, the defendant’s doctor’s report, and the medical records provided to defense counsel with the addition all pertinent x-rays.  He should review the medical literature or have it reviewed for him by a computer assisted medical check for articles, periodicals, books and treatises consistent with his opinion; this type of computer research should also be made for the defendant’s doctor and his published works.

The testimony of a medical expert generally includes his qualifications, the plaintiff’s case history, initial examination, diagnosis, course of treatment, present condition, cause of the injury, prognosis and amount of the bill for professional services rendered.

Though not a recommended practice, particularly in complex cases, it is not necessary that a physician be a specialist to give an opinion in a specialized area.  Nevanranta v. Koski, 335 Mass. 760 (1956).

A physician may use his records to refresh his memory in testifying but the notes themselves cannot be admitted into evidence since they do not fit into two of the four requirements of the business records exception rule (M.G.L.c. 233, section 78):  the records must be made prior to the commencement of the civil action, and the record must be of an act or an event rather than an opinion or diagnosis.  The Federal Rule of Evidence 803(b) is broader and allows “opinions or diagnosis”.

The facts upon which the physician testifies must already be in evidence.  Leech and Liacos, Massachusetts Evidence, 98-100 (4th Ed. 1967);  Comm. v. Harris, Mass. App. Ct. 265, 266-267 (1973).

IX.  Health Maintenance Organizations

It is estimated by the government that a majority of the doctors practicing within the U.S. are associated with some type of health maintenance organization and/or group practice.  HMOs are prepaid health care centers which charge their members a flat yearly fee, on a single, family or group basis, for all their medical needs.  In exchange for a sum certain the HMO agrees to provide for virtually all the health care requirements of its subscribers.  These services range from routine annual physical examinations to open heart surgery and rehabilitative care at specialized facilities.

If your client is a member, he or she will not receive a bill for services.  A medical bill is usually the primary factor to substantiate that the charge for services is fair, reasonable and necessary.  It is therefore important to find a way to estimate to a reasonable certainty the monetary value of the services performed at a HMO.  The jury needs this information as a means to assess damages for medical care in the past, present and future.  The mere fact that the client did not have to pay the full value of the services is no different from if he/she had purchased an insurance policy to pay for the medical costs generated by the HMO in the first instance; it is a collateral source.  An exception to this basic rule may exist in medical malpractice cases.

One can obtain the monetary value of the services in a couple of ways.  A financial administrator of the HMO could be asked to review the computer printout of the medical care provided and then ascribe a market value to each service based upon a comparison of like services in nearby hospitals.  Another approach would be to retain a medical economist to review the services provided by the HMO and have him determine their economic value based upon federal and state economic and private industry statistics and reports.

A local example of a facility which does not generate medical charges for its services is the Shriner’s Burn Institute in Boston. Its services are provided without charge.  The market value of its services is extraordinary. They should be documented in those catastrophic injury cases where future medical care is significant and its projected cost can be estimated, in part, from present costs.

XVI.  Future Medical Care and Disability

The cost of medical care has risen in the past and continues to rise at a rate well in excess of the Consumer Price Index.  In fact, the cost of medical care is one of the fastest rates of growth in the U.S. economy.  If one has a client with permanent injuries and longterm disability, it is advisable to retain a medical economist to review the medical care provided.  The information he needs includes the records from all health care providers, the client’s deposition, the medical bills, and the economic records of the client.  With this information the medical economist can project the total cost for comprehensive medical care over the reasonable life expectancy of the client.  This projection would include, where appropriate, the cost of institutional care at a number of similar facilities for comparative purposes.

If you have a client whose future medical problems are not catastrophic in nature, but are more appropriately described as chronic, you still must try to quantify the economic value of the care both for settlement and trial purposes.

If the medical services include an operation to be performed within the next year or so, the treating physician or surgeon is probably able to give an opinion which is admissible at trial, on the reasonable cost of such services.  (M.G.L.c. 233, section 79G allows proof of the reasonable value of past medical costs by affidavit without the necessity of having the physician or hospital administrator testify; also see M.G.L.c. 46, section 19, which allows the introduction of a death certificate into evidence as prima facie evidence of facts recorded).

XVII.  What is Contained Within a Medical Record – Pro and Con – or What Do The Words Mean

It is quite common for a medical record to contain many items which are at best, extraneous, and at worst, harmful to the plaintiff’s case. Such entires may include references to alcohol and/or drug use, abortions, mental illness, and pre-existing physical conditions which are the same or similar to the injury at issue.  Though they may not have any bearing on the current medical problems your client is suffering from, they are veritable targets for the defendant’s attorney to use, if for nothing else than, to question your client’s character.  The abuse of alcohol is often cited as a contributing cause of an accident either as the prime factor or as a contributing factor engendering inattentiveness or limiting the client’s normal physical reaction responses.

If your client has gone to the local hospital for most of his/her life it will contain records from her childhood, adolescence and adulthood.  The hospital records will probably contain old radiology reports and original x-rays, birth control problems and all the myriad things associated with one’s medical care and how it reflects a truncated picture of one’s life.  Many of these entries, in the hands of a skilled trial attorney, can be used to impeach  the client’s veracity, besmirch his/her character, limit his/her medical complaints and ultimately undermine his/her credibility.

On the other hand, the medication chart, if properly used by the plaintiff’s counsel can explicate the drugs used to control the client’s pain:  hour by hour; day by day; and week by week.  Nurses’ notes are often replete with entries documenting a patient’s discomfort, reaction to medication and the patient’s progress or lack of it.

The key to the use of medical records is to know how to read it or how to find someone to assist you in its interpretation.  One should approach the medical records as a story about his/her client, in which her physical condition is a manifestation of her impairments, disabilities and loss of well-being.

XIX.  Why Can One Collect for Medical Care and Pain and Suffering in the Past, Present and Future

A client is entitled to be compensated for her injuries which are proximately caused by the defendant’s negligence. The expenses incurred for medical care due to the defendant’s negligence are a factor the jury can consider in assessing damages and in determining a monetary award.  The jury is not permitted to guess or speculate, but must base its decision on the facts in evidence.  The medical records and expert medical opinion provide the jury with the facts upon which it can make an informed, reasonable and  intelligent decision.

There are times when medical records, reports and comments from collateral sources such as workmen’s compensation files are admissible in evidence within the discretion of the trial judge.  These types of records are frequently used by defense attorneys for impeachment purposes.  The more frequent tactical reason for which they seek their use is to inform the jury that the plaintiff has already received monetary benefits from other sources.  If the plaintiff, for example, has lump summed his compensation case, an itemization of the money received is contained within the settlement agreement.  The agreement also contains the client’s signature with some boilerplate language that the plaintiff is fit or able to return to work.  As a general rule, collateral sources are inadmissible.   Shea v. Rettie, 287 Mass. 45 (1934), but their admissibility into evidence on the issue of the plaintiff’s malingering is within the trial judge’s discretion.  Goldstein v. Gontarz, 364 Mass. 800, 808-809 (1974);  Pemberton v. Boas, 13 Mass. App. Ct. 1015 (1982); Corsetti v. Stone Co., 396 Mass. 1 91985); See also, James N. Esdaile, Jr., The Collateral Source Rule, Vol. 68, No. 3 Mass. L. Rev. 102 (Sept. 1983).

XX.  Jury Charges

A jury charge, although it comes at the end of the case when both trial counsel are emotionally exhausted, is an opportunity for persuasion which should not be lost.  It is at that point that the judge tells the jury the rules under which they decide who wins.

Some judge have standard charges from which they never vary.  Some are open to suggestions and actively solicit proposed jury instructions; and others, particularly newly appointed judges, look to trial counsel for proposed jury instructions as an aide in their learning process.

By the time you reach the judge’s instruction of the law to the jury, the case is almost over, but it is important that the jury understand what they are being told.  Often jurors are told the law, that is, it is read to them, but they have little sense of what it means or what they are supposed to do as a result of being “given the law”.

An attorney can assist the jury in their understanding and aid his client’s case by submitting proposed jury instructions on the issue of medical damages which are clear and concise.

If there are claims concerning unusual aspects of the plaintiff’s care for which compensation is sought, one should include a case citation to substantiate his proposed jury instructions to the judge.  The mere argument of a claim for medical compensation is hollow unless some precedent can be cited either within your jurisdiction or from other leading jurisdictions.  If one is trying “to make new law” it is advisable to cite cases which are as nearly analogous to the client’s claims as one can.  You want to suggest to the trial judge that you are seeking legal evolution and not revolution.

XXI.  Settlement Negotiations

It is a well documented fact that approximately 90% of the cases filed in court are settled prior to trial.   Attorneys, although schooled in the law, must learn the techniques and strategies of negotiation through experience, and trial and error.  The means by which you become a good negotiator is beyond the parameters of this monograph but it is axiomatic to say that one is persuasive as an advocate if he or she can support his position by well documented facts.

The medical care rendered by health care providers is also a means, in part, by which the attorneys, both plaintiff and defendant, prior to trial, go about the task of evaluating the economic value of the client’s case.

The extent of the plaintiff’s injury and the likelihood of future disability is, in part, predicated upon the picture portrayed in the medical records.  Since an insurance adjuster is probably less knowledgeable about the nuances of your client’s medical care and treatment than you are, it is incumbent upon the skilled practitioner to organize, document and package the information in the most easily digestible manner.

In order to get the attention your client deserves, it is important to provide the insurance adjuster with an organized, substantiated and distinctive file on your client – a little incentive for him/her to direct his/her energies to your case out of the perhaps hundreds that are in  his/her files.

Practice Tip:  You can inexpensively create a negotiation or settlement journal or book by photocopying, and indexing the medical records.  This journal should contain a narrative of the facts as they occurred and describe the medical treatment in chronological order.  Each time the narrative refers to an examination, a doctor’s report, a hospital admit note, a consult note, a pivotal x-ray, etc., it should contain a note in parentheses such as, see tab number 1 of medica record.  In this manner, the persuasive nature of the narrative is enhanced by easy reference to the underlying facts.

This ‘packaging’ of pertinent material also makes it easier for the adjuster to read. It eliminates the problem of loose and/or missing pages and creates a narrative theme for the plaintiff’s case.  It may also have the additional benefit of intriguing the adjuster by the professional manner of your presentation, enough so that he/she will take the time to read it.

At a minimum, such a journal disciplines you to get your file in order well in advance of trial.  It also informs the defendant’s attorney that he is dealing with a professional who is willing to exert that extra effort on behalf of his client.

Arthur F. Licata

Pain and Suffering: damages in a personal injury lawsuit

November 17, 2011

Everyone has heard the term “pain and suffering” associated with damages in a lawsuit. Many people discount the legitimacy of such damages and consider them overblown or exaggerated. This suspicion of  “pain and suffering” appears to exist until you are injured, until you are thrown into a world of hurt and until your world is turned upside down. Because pain and suffering is difficult to prove it does not mean that it does not exist.
For example, many people believe in god but no-one has ever seen the Divine.

Pain and suffering comprises both physical pain and emotional pain. Let’s see if we can describe what it feels like to be in constant, severe and unremitting pain:

the worst of hells is continuous pain; hell is continuous suffering;

pain and suffering shrinks your life; pain reduces your reality.

if life is a river you stay on the shore in the same place as when you were injured.

life continues in its normal flow without you.

you are disconnected from yourself, other people and the life you knew.

your identity is snatched away from you and you are in solitary confinement with yourself.

says the Buddah; he who is in perpetual hell never dies even if he wants to die.

infinite suffering for infinity.

constant unrelenting pain, every instant and for every second without relief with only death being able to relieve the pain.

“they shoot horses don’t they” to relieve their suffering.

the pain scours you.

it strips you of your self-respect.

it makes a coward out of you.

it debases you.

it makes you feel ashamed of yourself.

It, the pain, robs you of your hopes and dreams.

There is not enough money in the world to balance the scales of life to endure this pain and suffering. It is your reality from the moment you open your eyes in the morning to the time you struggle at night to close them.

These are some of the reasons that pain and suffering are part of the damages considered by juries in personal injury cases.

Arthur F. Licata

your recent blog responses

November 17, 2011

Thank you for kind words.
perhaps some of you can suggest specific legaL topics that interest you or that need explanation.

Arthur F. Licata

Punitive Damages (Part 1): Only Punitive Damages Will Deter Insurer’s Unfair Practices

November 8, 2011

The Supreme Judicial Court heard oral arguments on October 6, 2011 in the case of Rhodes, et al v. AIG Domestic Claims, Inc., et al., SJC-1091. The primary issue for the court was: “Upon finding a willful violation of Chapter 93, did the trial court commit legal error in failing to double the underlying judgment when calculating punitive damages?”

Pursuant to G.L.c. 93A and 176D, punitive damages are awarded against insurance companies in order to punish their unfair and deceptive claims settlement practices and bad-faith settlement offers.

Unless there is a clear rule that imposes severe monetary sanctions against bad-faith insurers, there is no incentive for the insurers to change their bad-faith behavior. It is only the sanction of punitive damages that has changed insurer behavior in the past and will likely do so in the future.

However, trial court judges must have “effective” punitive damages – that is, the multiplication of the jury verdict by two or three times. Limiting punitive damages to the interest lost on the use of money will not deter unfair and deceptive claims settlement practices. The award of interest for a violation of 93A is an inconsequential punishment.

Given the economic disparity between plaintiffs and insurers, the insurers will continue to engage in bad faith because it is cost-effective. The removal of multiple punitive damages will negate the public policy purposes of G.L.c. 93A and 176D.

Insurance companies try to frustrate the trial court’s consideration of punitive damages despite their bad-faith behavior. What seems a series of disjointed and random acts by an insurance defendant is, in fact, a very well-planned strategy. Its actions are not unique to any particular case, but a piece in a larger plan to delay accountability and to drag out the case.

An insurance company plans to pay as little as possible for as long as possible; it is the company’s philosophy of doing business. If seen in that context, the decisions of the insurance companies seem coherent and well-executed. It is their attempt to frustrate the trial court’s application of 93A and 176D. All the while, they claim their actions are in response to unreasonable demands by the plaintiffs and their intransigent attorney.

In order to understand an insurance company’s tactics of delay, one must first understand the role that insurance plays in a lawsuit. Is there insurance to pay for a settlement or jury verdict? How much insurance? Who controls the insurance? Is it controlled by the insurance company or the insured?

Even the particular insurance company covering the loss makes a difference. Each insurance company has its own personality and levels of competence or incompetence. The adjuster’s experience and expertise is very important. Can he recognize a serious case and give it the attention it deserves, or are all his cases handled on an assembly line basis with the operative word being “no.”

For that matter, do the trial courts understand the business plan of insurance companies? If the trial judges do not, then they are missing the vital story between the lines.

An adjuster does not get rewarded for giving out money. The claims department is the tail of the insurance dog. The real business acumen and financial expertise are in the underwriting department. The finance part of the company is where the real business of investing premiums and profiting from this investment activity is carried out. Profit is not earned from merely collecting the premiums.

A claims department is a necessary evil in order to have the opportunity to collect premiums invest the money and hold onto the money for as long as it can in order to maximize the return on investment.

That is why most serious cases settle at the courthouse steps. The insurance company would rather keep the money it has set aside for the particular case (underwriting) and invest the money along with the premiums It will usually consider paying out in a settlement, only after earning as much as it can from its investments in stocks and bonds.

A succinct explanation of investment decisions and practices was discussed by Warren Buffett, chairman of Berkshire Hathaway, which is one of the biggest companies in the country and owns some of the largest and most financially successful insurance companies in the world.

This is what Buffett wrote in his 2009 annual letter to shareholders:

“Insurers receive premiums up front and pay claims later. In extreme cases, such as those arising from certain workers’ compensation accidents, payments can stretch over decades. This collect now, pay later model leaves us holding large sums – money we call ‘float’ – that will eventually go to others.

“Meanwhile, we get to invest this float for Berkshire’s benefit. Though individual policies and claims come and go, the amount of float we hold remains remarkably stable in relation to premium volume. Consequently, as our business grows, so does our float.

“If premiums exceed the total of expenses and eventual losses, we register an underwriting profit that adds to the investment income produced by the float. This combination allows us to enjoy the use of free money – and better yet, get paid for holding it.”

No wonder adjusters are encouraged to just say no. The strategy is to keep the money as long as they can, invest it, and simultaneously use time and delay as a bludgeon to wear down the resolve of the plaintiff and his attorney. There is a very clever method to their madness.

Money is the only sanction that gets the attention of an insurance company. Casualty insurance companies and their claims adjusters are not encouraged to fairly, justly and reasonably settle meritorious accident claims. If they did, there would be less float to invest and less investment income to earn.

Punitive damages, comprising two times or three times a jury award, are the only effective way to deter the bad-faith behavior of insurers in personal injury cases.

Arthur F. Licata

THE RULE OF LAW

September 17, 2010

THE RULE OF LAW

Why Is Democracy Failing?

Why is the rule of  law so important?   What characteristics separate a democracy from a dictatorship or oligarchy?  Why does the form of government play such a large role in the health and welfare of its people?

The rule of  law provides a system that holds people responsible for their actions.  Each citizen must be treated equally.  Even the most powerful are held accountable by the courts and are punished for their transgressions.

The rule of law works if the actions of elected officials are not arbitrary or capricious.  The laws, rules and regulations enacted by the people’s representatives must reflect a concern for the communal good.

These equitable concepts are deeply embedded in the U.S. Constitution.  It is assumed that the rule of law will protect our freedoms and that the right to be safe and secure in our homes will be respected.  The question then arises whether we have the wisdom and discipline to preserve, protect and defend these rights and privileges.

In the U.S., a legal  system has been established that tries to balance the needs of the individual with the needs of the community.  It tries to insure the greatest possible good for the greatest number of people.  Yet, there is unease in the body politic.  People recognize that something is wrong.  Things are not working.  The middle class is shrinking.  More and more people are falling into poverty.  Wages have remained stagnant.  Good manufacturing jobs have fled overseas.  The disparity between rich and poor has significantly widened and continues to do so.  The rich get richer.  The privileged seem to go unpunished and unrepentant.  The Congress is detached from the needs of its constituents.  Senators and Congressmen are primarily concerned with their re-election.  They want to stay in the exclusive world of Washington, D.C.  Special interests get preferential treatment as a result of their campaign contributions.  The checks and balances so brilliantly  incorporated into the Constitution have been circumvented.

Why does Democracy seem to be failing?  One reason may be that democracy requires intelligent and dedicated leaders.  It requires leaders that exhibit the political will to vote for what the country needs.  It also requires leaders who will resist the short-term interests advocated by political operatives and lobbyists.

People sense that there is no longer a level playing field.  In the name of deregulation, free market capitalism has turned into a rapacious, unfair and unequal system where the winner takes all.  The strong prevail and the weak get crushed.

The rich no longer want to share.  The middle class live from paycheck to paycheck.  Their job security is non-existent.  Their ability to raise a family with two parents working full-time jobs is under attack.  Is the country able to survive its leaders?  The accepted wisdom is that these problems are transitory.  The pendulum swings back and forth and that, over time, the system will return to equilibrium.

However, there is another view.  It is the belief that the American Century is over.  It posits that the preeminence of the United States was approximately one hundred years, that is, from 1890 to 1990.  It is now in the position of Great Britain after WWII.  The USA is broke.  It is the biggest debtor nation in the world.  It has and is living beyond its means.  Its national debt, its trade-imbalances and yearly deficits are unsustainable.  Just as Great Britain saw its power slowly decline and its Empire disintegrate,  so will the United States  experience the same phenomena in a shorter period of time.  The melting pot has turned into a cauldron of special interests.

The tragedy is that this decline is not inevitable.  It is self-inflicted.  The lack of political leadership, the lack of economic discipline, and the lack of shared communal values have undermined the country’s strengths.  The strengths of the U.S. political system is universal education, political accountability, a Constitution and a Bill of Rights, an independent judiciary, and a representative government.  The rule of law was designed to promote societal and economic values that benefit everyone and not just a privileged few.

The weaknesses of the U.S. system is a lack of political leadership; the corrosive effect of campaign contributions;   of the minority; the influence of  lobbyists; the culture wars; anti-governmental attitudes; individualism over communal needs; narcissism versus discipline; the lack of long-term planning; and the fragmentation of society.

The U.S. government waits for disasters to happen before it fixes a problem.  It is reactive instead of proactive.  An example of this gridlock is the national fiscal crisis.  The government is experiencing budget deficits, trade deficits, and a national debt that are unsustainable.   The Congress is well aware of these facts but it refuses to act.

In contrast, dictatorial regimes seem to have some advantages over democracies.  They do not have to be concerned with political gridlock when trying to implement national goals.  They can respond quickly to a perceived crisis.  Long range planning allows them to take advantage of their political and economic competitors.  The oligarchy that rules the P.R.C. (China) has set an agenda in which whole communities and villages have been sacrificed to achieve enormous national goals, e.g., The Three Gorges Dam.

Oligarchies also have the advantage and luxury of  time.  They are able to be patient.  They are not driven to make hasty decisions on insufficient information as a result of the 24-hour news cycle.  The influence of lobbyists is absent, although it must be admitted that corruption is rampant.

For example, in order to maintain power and control, the Chinese leadership has made a devil’s pact with its people.   Political freedom is not tolerated but, in exchange, its citizens are free to become rich.  There is a tacit understanding that says “Stay out of politics, accept the primacy of the Communist Party, and you can make as much money as you wish.”

The Chinese Communist Party prohibits political dissent in order to maintain its monopoly.  It forbids unauthorized street demonstrations; protests, referendums or initiatives;  opposition political parties; civil liberties; criticizing or questioning the rule of the political elite; and disputed elections.  The Communist Party maintains its dominance by nominating all candidates for political office.

In the last twenty-five years, this social compact has generated an economic miracle.  China has become the factory floor to the world.  It has hollowed-out the manufacturing base of the United States.  China has sown the seeds of surpassing the U.S.A. as the most powerful economic power in the world by the middle of the 21st Century.

The economic, political, social and cultural survival of the United States is at risk.  Yet, many people in the United States are still unaware of the threat’s severity.  We have a sense of entitlement.  We seem to believe that our country’s preeminence is permanent and not necessarily re-earned every generation.

The young people of the United States may be the first generation in a hundred years whose standard of living is less than that of their parents.  The flexibility of our democratic institutions rests, in part, upon the existence of this vast middle class.  In the past, everyone believed that with hard work, a good education and perseverance they could increase their standard of living.  They thought they would be able to leave to their children a world better than the one they had inherited.  Those beliefs and dreams are now under siege.  Young people now question whether their future standard of living will be better for themselves and their children.

This economic uneasiness can lead to political instability in the manner that was experienced during the Great Depression.  What is more troubling is that our leaders do not seem to understand the immediacy of the problems and the depth of their dangers.  They very freedoms we hold most may not be sustainable with a shrinking economic pie and the perception that the rich have abandoned the middle class.  Do our leaders, political and economic, have the will and the courage to make the hard decisions that may not come to fruition for a generation?

An example of a country where the rule of law is non-existent, is modern-day Russia.    Corruption is endemic to the system.  It permeates the entire governmental, judicial and social environment.  Its citizens have no rights upon which they can rely.  The courts are subject to political influence.  Domestic and foreign businessmen cannot make enforceable contracts that will be devoid of political machinations.  Premier Putin and the remnants of the old KGB leadership now run a criminal state.  As a result, after the initial euphoria of the Yelsin years, foreign investment in Russia has significantly declined and continues to do so.  Foreign companies have had their property appropriated by court order under the most pretextual of circumstances.

There is no independent judiciary.  The law is seen as a tool of the powerful.  The courts are avoided because their decisions are politically influenced.

Italy is another example of a country where the rule of law is unreliable.  Its economy is stagnating because it has a culture of corruption.  Despite the fact that it has been part of the European Union for over two generations, its economy is still one of the weakest in Western Europe.  Businessmen cannot rely upon contracts.  They cannot depend upon the courts to enforce their agreements.   The courts and the law are not to be trusted.  Preferably, they are to be avoided at all costs because the powerful and the privileged control them.

The economic crisis of 2009 should serve as a warning.  Many of our most powerful institutions failed.  Our regulatory system did not do its job.  Peoples’ greed and corruption circumvented our rules, regulations and laws.  The disdain of the wealthy and the powerful for the little guy was revealed in all its ugliness.  Short-term thinking prevailed with predictable consequences.  The lack of political leadership and political will compounded the problems.

Human nature will not change.  Greed and fear are part of the human condition.  What we can do is enact and enforce laws that are fair and equitable.

Copyright 2010

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Arthur F. Licata,

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Boston, MA. 02109

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