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Legal News June 2007
Nursing Home Contracts Nursing homes are now putting language in their contracts with their residents (or with a relative with a health care proxy) which requires, in a dispute over care or injuries, to resolve the matter in an arbitration forum.
Absent fraud, duress, or undue influence, arbitration agreements are enforceable in the context of nursing home agreements and, therefore, have become your only remedy in resolving disputes of negligence or substandard care which you may have alleged against a nursing home facility. If you have concerns for yourself or a loved one, please call our office and we will be happy to mail you a copy of Five Steps to Protecting Your Loved Ones From Nursing Home Neglect or click to download the PDF. Always keep in mind that if you have any questions concerning a possible claim, our consultations by phone or in person are always free. Always Request a Show Cause Hearing
It is important to retain the services of an attorney since most individuals who are unrepresented do not have the skill or the knowledge of the law to be able to defend themselves. Oftentimes, in the event that the charges may be true, we have been successful – in 90 to 95% of the cases – in obtaining diversions to avoid a criminal complaint, with out-of-court recommendations and solutions. Before permanent records are created, please call us for a free consultation to find out how we can help you maintain an unblemished criminal record. |
Enforcement of a Settlement Agreement What do you do when an insurer refuses to abide by a verbal settlement agreement? Sometimes after an agreement, insurance companies impose conditions which were neither negotiated nor discussed in reaching an agreement. Sometimes they simply renege on their agreements. Fortunately, it happens infrequently, but you must know your rights. The courts have recently dealt with this issue and have consistently upheld the enforcement of insurance settlement agreements with claimants. Where it used to be that the courts were deciding along insurance company lines, there appears to be a shift to a more neutral and fair position for claimants. You are no longer “at their mercy.” If you are a victim of this abuse, please call us any time for our help.
Has Your Driver’s License Been Suspended?
Since the creation of the National Driver Register, all states report suspension to this entity. Under the law, the homestate must honor suspensions from the foreign state. The Massachusetts Registry of Motor Vehicles is mandated to suspend a person’s driver’s license until such time as their “right to operate” is reinstated in the foreign state. For example, if your right to operate has been suspended in Connecticut and you hold a Massachusetts license, Massachusetts will suspend your license until such time as your “right to operate” has been reinstated in Connecticut. Since Connecticut is right next door, it would be easy to clear up the Connecticut matter to the satisfaction of the Board. What happens if the foreign state is Pennsylvania or Georgia, for example? It could be insurmountable. When you have done all that is required in the foreign state, make sure all paperwork is certified, and make sure your privilege to operate has been formally restored. Since Massachusetts will require proof of reinstatement by you, make sure that you obtain a copy of the driving history in the foreign state as well. |
Illegal Search and Seizures by Our Law Enforcement Officials It is becoming more and more common that our law enforcement officials, local and state police in routine traffic stops, order all occupants from the vehicle and search their persons for contraband. They are searching in the name of law and order and have figured out ways to legally justify an illegal search. These types of searches have significantly increased since “9/11.” Our constitutional rights continue to erode due to the fear of terrorism and serious criminal activity, which seems to be the main and only focus of our news media.
If you are stopped by law enforcement for any traffic violation, make sure that you do not make any sudden or furtive movements, such as bending over to the glove compartment to retrieve your license and registration (this will be interpreted as possibly reaching for a weapon). This then will justify an exit order by the police, and after you’re removed from the vehicle, you will be patted down, frisked and searched. In the event that contraband is found, you will be arrested and charged accordingly. Your entire motor vehicle, including your glove box and trunk, will also be searched. Your vehicle will then be towed and could be impounded and seized. The sad part about this new trend is that minorities seem to be the focus and the pretextural reasons given by law enforcement are all too often upheld by our courts.
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In the case of Miller vs. Cotter the Supreme Judicial Court ruled that a lawsuit was precluded by the arbitration clause which was signed by the son who had the requisite authority to make a binding agreement on behalf of his 91-year-old father. This is a significant ruling because arbitration awards are generally non-appealable and generally result in an award that is much less than a jury award. They may also be limited in the type and amount of damages which may be awarded.
On the criminal side of the court, there exists a procedure whereby an accused may be entitled to what is known as a “show cause” hearing. Sometimes you are notified by the police through a citation which will list criminal offenses with civil offenses, such as speeding. On the back of the form there is a box where you can appeal the civil infraction and also a box with instructions as to how to request what is known as a show cause hearing before a magistrate or assistant magistrate in the particular court of jurisdiction. These hearings are not public records as most recently set forth in Eagle Tribune vs Clerk Magistrate of Lawrence Division.
You may be able to obtain a “Cinderella” or 12-hour license through the Board of Appeals, an arm of the Registry of Motor Vehicles which can change or modify decisions of the Registry of Motor Vehicles. The Board, however, only has jurisdiction as long as the basis of the suspension has not originated from a reported suspension by another state.
Our courts have, on a case-by-case basis, continued to narrow and limit our constitutional rights in what seems to be a “greater good” philosophy. We should never forget that our constitution was created to protect us from unreasonable searches and seizures. Our forefathers drafted the Constitution knowing that it was necessary to protect us from illegal searches even though once in a while a guilty person might be protected as well. That is the price for living with a free and unoppressive government.