CUSHNER & BLOOM, P.C.

BROOKLINE, MA  02446

Tel. (617) 608-0019

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WHAT'S NEW IN MASSACHUSETTS PERSONAL INJURY LAW?

1. Medical Lien Holders do not have to pay their share of attorney's fees.  The Massachusetts Supreme Judicial Court decided that an HMO, which had provided medical services to an injured party and which had placed a lien on any recovery from the responsible party, did not have to pay its share of the injured party's attorney's fees and costs.

2. Auto insurers do not have to pay medical bills in excess of $2,000 if the injured person does not stay within his health insurance plan when he is able to. If a person injured in an auto accident decides to see a doctor, therapist, chiropractor, etc. who is outside of his health plan, and the plan offers such medical services, then his auto insurer may not have to cover the charges (in excess of $2000).

3.  The Massachusetts Supreme Judicial Court recently found that a child could not sue its mother for injuries it sustained while in utero.  The mother allegedly drove her negligently which resulted in an accident.  The accident caused the child to be born 4 days later by cesarean section.  At this point in time, the fetus was only about 32 weeks old.  The child experienced multiple breathing difficulties and continued to suffer from respiratory distress and asthma.  The Court held that In order to sue a defendant for negligence, the plaintiff must first demonstrate that the defendant owed him/her a duty of care.  The issue of this case is whether a pregnant woman owes a legal duty to her unborn child to refrain from negligent conduct that may result in physical harm to that child.  Whether a duty exists must be ascertained from common law, to be determined by an examination of existing social values and customs and appropriate social policy.  Upon examination of such factors, the court held that a pregnant woman does not owe a legal duty of care to her unborn child to refrain from negligent conduct.  There is a unique relationship between a woman and her unborn child.  To impose a legal duty of care on this relationship would invade the personal choice of women.  Women could be sued by their children for a whole host of things such as playing basketball or taking Tylenol.  This is not something which the court would like to support.  To declare that there is a legal duty would also require too much of the court such as deciding what is reasonable behavior of a pregnant woman, determining when a particular woman found out she was pregnant and when she should have known, etc.  The Massachusetts Court noted appellate decisions from other states (New Hampshire, Michigan and Florida) which hold the opposite. These decisions were based on the idea that an unborn child, after birth, may recover for prenatal injuries negligently inflicted by another and because parental immunity has been abolished in those jurisdictions, it seems only fair that a parent be held to the same standard as a third party. Ultimately, the Massachusetts Court held that a fetus, once born, cannot maintain a negligence action against its own mother to whom it is biologically joined.  Remy v. MacDonald (2004).

 

Personal Injury Law is often complicated and subject to recent changes in the law.  At Cushner & Bloom we stay on top of the latest Massachusetts court decisions for the benefit of our clients and ourselves.  If you have any questions on a personal injury matter, please feel free to contact Attorney Steven Bloom.

By e-mail: cbpc@ix.netcom.com
By regular mail: 1170 Beacon Street, Brookline, MA 02446
By telephone: (617) 608-0019 or through my Comments Page.