Medpay Update by Mary Jane Mckenna Targeting Protection for Insurance This Year, and Corporate Entities, and Massa- by John J
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February2009 | Vol. 2, No. 4 Child trespassers and water hazards By Roger T. Manwaring pool, which is closed on the night sloping deep end. Engrossed in the they arrive, is fenced and locked but game, the girl fails to notice that oth- Late on a teenagers often trespass, either by er swimmers have removed the di- warm August scaling the fence or cutting through viding rope in order to expand the night, a 14-year- it.The girl, who knows that she can- “playing field.” In the excitement of old girl and a not swim, enters the shallow end of the moment, she steps over the now group of her the pool to play a tag-like game with unmarked dividing line, slips down friends trespass her friends. the sloped floor into the deep end, on the property Although it is lit by floodlights, the and nearly drowns, sustaining seri- ous, permanent injuries. of a nearby pool has no interior illumination. Diamond Ball, page 8 apartment com- There is a rope dividing the relatively She sues, claiming that the apart- plex in order to swim in its pool.The flat shallow end from the steeply Continued on page 4 ‘Consumers first’ experiencing legislation that will be MedPay update By Mary Jane McKenna targeting protection for insurance This year, and corporate entities, and Massa- By John J. McMaster $8,000 in PIP has been exhausted.) expenses that are payable, or would Americans face chusetts will not be an exception. The PIP portion of the automobile have been payable except for a de- a multitude of The rights of consumers cannot be The interplay policy, Part 2, states,“We will pay up ductible, under the PIP coverage of problems that sacrificed to make corporations sol- between Person- to $2,000 of medical expenses for any this policy or any other Massachu- are directly tied vent. Our role as members of the al Injury Protec- injured person. We will also pay med- setts auto policy.” to the economy trial bar has never been more es- tion benefits, ical expenses in excess of $2,000 for In Allstate Ins. Co. v. Bearce, 412 and the many sential on every possible level. Part 2, and Med- such injured person which will not be Mass. 442 (1992), Allstate paid Bearce decisions being MATA offers its members both ical Payments paid by a health plan. Medical ex- $25,000 in MedPay benefits for in- made by legislators both on Beacon visible representation and a strong benefits, Part 6, penses must be submitted to the juries received in an auto accident. Hill and on Capitol Hill.The flurry voice on Beacon Hill that strives to of the Massa- health plan to determine what the Bearce then sought underinsured of financial assistance for corpora- protect the rights of their clients chusetts Stan- health plan will pay before we pay benefits from Allstate. In evaluating tions in both state and federal gov- and of consumers everywhere.This dard Automobile Insurance Policy, benefits in excess of $2,000 under this the amount of benefits due Bearce, ernment are being takes tremendous time and an injured person with health Part.”Therefore, an injured party with Allstate took the position that they done in the hopes of PRESIDENT’S and effort on the part insurance and medical expenses in health insurance must submit the were entitled to an offset of the slowing the economic of the MATA members excess of $2,000, has been the subject first $2,000 in medical expenses to the $25,000 paid in MedPay benefits, meltdown so many MESSAGE who volunteer to of considerabledebate over the last PIP insurer and then the balance to claiming that failure to take the offset companies are experiencing at this screen the many legislative bills few years. his health insurance.Thereafter, PIP would allow Bearce to receive dupli- time. Somewhere in that mix are that are filed each session, write Given the language in a few court will pay only for medical expenses in cate payments, i.e. Bearce would be consumers who may be diversely summaries of bills of interest to decisions, the availability and proper excess of $2,000 which are denied by allowed to be reimbursed the affected by these actions.Their only MATA and meet with legislators to procedure for accessing MedPay has the health insurer, although there are $25,000 in medical bills through access to justice at this crucial and discuss various issues. been the subject of much confusion exceptions to that practice that are MedPay, and also be allowed to claim important time remains the mem- These MATA volunteers have and resulting frustration to not relevant to this issue. the same $25,000 as part of his dam- bers of the trial bar. also given their time and energy to claimants. (This article will not deal The Medical Payments provisions, ages in the underinsured claim. It is not only important to be a attending and speaking at hearings with situations in which the injured Part 6, of the standard Massachusetts The SJC disagreed with Metropoli- MATA member right now, but it is on bills, sometimes taking full days person either has no health insur- Automobile Insurance policy, sev- tan and stated that the express lan- vital that each of us be involved as to do so. We need members to join ance, or a health plan such as Medi- enth edition, state in pertinent part, guage of the various parts of the pol- much as possible in the legislative these committees to work on all caid which does pay benefits until “Under this Part, we will pay reason- icy“clearly reflects the contemplation process and be even more diligent types of legislative issues, including the full $8,000 in PIP benefits has able expenses for necessary medical of the parties that payments under in our efforts to make sure that the workers’compensation, auto insur- been exhausted. In those cases, there and funeral services incurred as a re- the medical payments coverage needs of the consumer are protect- ance, medical malpractice, products has not been much debate that Med- sult of an accident.”It goes on:“We might properly result in the insured ed and represented. Every state is Continued on page 2 Pay would begin paying after the full will not pay under this Part for any Continued on page 6 A Supplement to Massachusetts Lawyers Weekly 2 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS FEBRUARY 2009 Editor’s note: digital imagery evidence By J. MichaelConley photo developer. In reality, the predicate of evi- (admission of photographs largely in discretion N.E. 2d 1195 (2006), quoting Commonwealth v. dence of any imagery, from a photograph to a of trial judge). Harvey, 397 Mass. 351, 359, 491 N.E. 2d 607 The more things witness’s blackboard sketch, has been the relia- Authentication is a preliminary question of (1986), and Commonwealth v. Mahoney, 400 change, the more bility and credibility of the person vouching for fact for the judge to decide. Id. at 537, 66 N.E. 2d Mass. 524, 527, 510 N.E. 2d 759 (1987) (“video- they remain the the image in his or her testimony that it fairly 814.The person testifying as to the substantial tapes are‘on balance, a reliable evidentiary re- same. As technology and accurately represents what it is offered to similarity of the photograph and the original source,’ ... and ...‘should be admissible as evi- has rapidly advanced depict. need not be the photographer but may be a per- dence if they are relevant [and] provide a fair to facilitate court- Recently, in Renzi v. Paredes, 452 Mass. 38 son familiar with the details pictured. See Com- representation of that which they purport to room use of digital (2008) — which, along with its companion monwealth v.Weichell, 390 Mass. 62, 77, 453 N.E. depict’... [D]igital images placed and stored in a imagery and to en- case, Matsuyama v. Birnbaum, has received con- 2d 1038 (1983), cert. denied, 465 U.S. 1032, 104 computer hard drive and transferred to a com- able relatively easy siderable fanfare for other reasons — the S.Ct. 1298, 79 L. Ed. 2d 698 (1984) (“the best evi- pact disc are subject to the same rules of evi- creation or alteration Supreme Judicial Court addressed the admissi- dence rule does not apply to photographs”). See dence as videotapes”). of images, I have often thought that such de- bility of digital photographic evidence reaffirm- generally H.J. Alperin & L.D. Shubow, Summary See also 2 McCormick, supra (“enhanced velopments would increase rather than de- ing an approach that is sensible, manageable of Basic Law §10.151 (4th ed. 2007). images within category of demonstrative aids crease the importance of credible verbal testi- and faithful to established trial practice. When, as here, the demonstrative photo- so long as they accurately illustrate what wit- mony providing foundation for the image. In “The use of demonstrative aids, including graph is generated as a digital image or video ness has to say”), concerns regarding the com- other words, a picture may still be worth 1,000 digital photographs and computer-generated image, the judge must determine whether the pleteness or production of the image go to its words, but only where the fact-finder believes images, is now commonplace in our courts. See image fairly and accurately presents what it weight and not its admissibility. See Common- that it is what it purports to be. generally 2 McCormick, Evidence §214 (6th ed. purports to be, whether it is relevant and wealth v.