Lynn man struck by falling utility pole files lawsuit

A man who suffered serious injuries after being struck by a utility pole during Hurricane Sandy is seeking damages from the companies that own and use the pole.

“We’re requesting a trial by jury,” said Peabody Attorney Barry Feinstein, who was retained Thursday to represent Bay State Road resident Chris Murray.

Feinstein filed a lawsuit in Essex Superior Court Tuesday claiming that because Comcast of Georgia/Massachusetts and Verizon New England both string cables from poles on Bay State Road, both are legally responsible for the maintenance and safety of the poles. He also said late Wednesday that he planned to amend the suit to add National Grid, since it also strings wires on the poles.

The 45-year-old father of two suffered two fractured vertebrae, six broken ribs, one collapsed lung and a fractured scapular after a tree came down, snapping a utility pole that struck Murray with a glancing blow as he stood in his driveway.

“We have filed four counts in the complaint,” Feinstein said. “Two counts of negligence and two counts of strict liability.”

Comcast spokesman Doreen Vigue stated only that the company does not comment on pending litigation. Phil Santoro, spokesman for Verizon, said he was unaware of the suit and would look into the issue.

Santoro said the poles on the street likely would be owned by one of two companies: Verizon or the electric company, which for Lynn would be National Grid. Comcast would also be named, as would the city of Lynn, which also strings its fire alarm system on the same poles.

It is unclear just who owns the pole.

According to court papers, Feinstein asserts that the poles were rotted, weak and otherwise unsafe, which made them “unreasonably hazardous.”

He also says Comcast and Verizon should take responsibility since the negligence resulted in injuries to Murray, “causing him to endure continued medical care and treatment; emotional and physical pain and suffering; and out-of-pocket expenses, including but not limited to medical expenses, lost wages and loss of enjoyment of life.”

“It’s very unfortunate,” Feinstein said. “In this instance Mr. Murray sustained quite serious injuries … that kept him in Mass General (Hospital) for a week.”

Feinstein is also charging both companies under a state law, Strict Liability, that states any “telegraph company,” which for all intents and purposes includes the cable companies, are liable for damages caused by its poles, wires or apparatus.

He said he doesn’t have to prove negligence, only that Comcast and Verizon were responsible for the utility pole and wires.

“We’re seeking a trial by jury so a jury might make an award to compensate Mr. Murray,” he said, adding that he expects Murray’s pain and suffering will be ongoing for an unknown period.

In an earlier interview with the Item, Murray said that none of his breaks required surgery but his first night at MGH was excruciating and he still needs to wear a large neck brace.

“I get a little better every day but then I slip back a little,” he said earlier. “It will be awhile.”

Nursing Home Negligence

Falls in Nursing Homes

Litigators who work with cases involving long term care know how significant the issue of falls can be. Falls are the leading cause of injury and death by injury in adults over 65. Approximately half of the 1.6 million nursing home residents in the U.S. fall each year, and a report by the Office of the Inspector General found that about 10% of Medicare skilled nursing residents experience a fall resulting in significant injury; and, more than 1/3 of hospital falls result in injury. In the rehab setting, rates are often higher – for example, fall rates among stroke patients have been shown to be very high. Immobility and falls can lead to poor outcomes.

Fear of falling is defined as a geriatric syndrome. It not only occurs in older adults who have fallen, but in those with impaired mobility and is associated with decreased physical ability and depression. Care of older adults requires that clinicians be aware of the myriad of issues related to falls including knowledge of this syndrome, increased risk and interventions needed to prevent injury related to falls.

Just about every resident in a long term care setting, including assisted living and sub-acute rehab, is at risk for falling. Between medications, functional and medical issues and advancing age, older adults in most settings are prone to falling.

There are well established standards of care related to fall prevention; but, as I continue to review records related to issues like falls, I am amazed at how often these basic standards are not being practiced. The basics of a fall prevention program include assessment and ongoing reassessment of risk, ensuring a safe environment, medication review, providing therapy as needed, individualized interventions, and staff education.

Basic nursing practice includes assessment, planning (Care plan), putting interventions in place and then evaluating outcomes to determine if those interventions are appropriate and effective. Assessment includes completing fall risk assessments on admission and then as needed. Very often, the fall risk assessments completed by nurses in LTC are inaccurate. The tools utilized in long term care typically include these risk factors: history of falling, use of ambulatory aids, gait/balance issues, medications, secondary diagnoses (i.e. diabetes) and mental status. Care planning is the next step in nursing care - it is the standard of care that as the resident’s status changes, assessments and care plans must be updated, and often, are not. For example, with each fall, there should be updates, or if there is a new diagnosis, i.e. stroke, or worsening dementia, updated interventions should be put into place, with ongoing evaluation of effectiveness.

Care planning and interventions very often are generic and not individualized. For example, a toileting schedule that includes only after meals and before bedtime may not be appropriate. If a resident has issues with constipation or incontinence, this may lead to the need for more frequent toileting to prevent falls. The “make certain call bell is within reach” for residents with dementia is an example of a generic intervention. Older adults with dementia may not recognize a call bell or remember to use it. The debate about use of bed and chair alarms go on – they are a part of an individualized care plan, not a solution to preventing falls. Often, I see delays in putting interventions in place, i.e. with the resident who is incontinent NOT being put on a toileting plan immediately. The other common issue I see when reviewing records is the lack of updating care plans as the resident’s status changes – with every fall, with worsening dementia, physical decline, or new medical diagnosis (i.e. Parkinsonism).

Nurses reviewing records need to pay attention to the MDS, risk assessments, care plans and Interdisciplinary notes with attention to where the standard of care is not being met.
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Nursing Home Negligence
Dropped Patients

Each year, one in four people over 65 fall at least once, and many of these victims sustain serious injuries, like broken bones and head injuries. Certain physical issues, such as Vitamin D deficiency, limited vision, medication side-effects, and a hazardous walking surface, multiply the risks exponentially.

Nursing homes have a duty of care to prevent their patients from being injured, especially when it comes to everyday activities like moving from a bed to a wheelchair. So, many nursing homes follow legal protocols, such as this three-point plan from the National Institutes of Health, when performing such operations. A failure to follow established guidelines is clear evidence of fault in negligence cases.

Types of Transfers

Many residents are in long-term care facilities, at least in part, due to mobility impairment. Therefore, staff members must do whatever possible to prevent falls during procedures like:
•Bed to Wheelchair: Inspecting the surroundings, like the physical condition of the wheelchair and the rugs on the floor, is one of the most important, and most overlooked, steps in these transfers.
•Wheelchair to Bath: Many falls occur in bathrooms, so staff must be especially diligent during such transfers.
•Hoyer Lift Falls: To lessen the physical strain on staff and residents, many nursing homes use hydraulic lifts to move patients, at least in some situations. If they are not used properly or working properly, these devices can cause serious injury.
•Chair to Chair: Many residents break their hips when they stand because they use their legs for additional leverage, and many staff members are not as cognizant of this danger as they should be.

In many cases, normal medical protocol requires that two or more staff members assist a resident during these and other transfers.

Possible Injuries

Many nursing home fall victims are already in a somewhat frail physical condition before the incident. To make matters worse, they are often in elevated positions and sometimes unable to break their falls. This combination usually results in serious injuries like:

•Broken Bones: These wounds often require extensive and painful surgical correction and long-term physical therapy.
•Brain Injury: Often, the jostling alone (like a raw egg sloshing against an eggshell) is sufficient to cause permanent injury, including personality changes, loss of function, and even death.
•Internal Bleeding: Emergency responders are often preoccupied with outside trauma injuries to the point that they neglect internal injuries.

In addition to compensation for medical bills, victims and their families normally receive compensation for their pain and suffering.
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