• August 16, 2013: Claimant Fails to Coordinate PIP Benefits; Medical Provider Loses Right to c. 90 §34M Payment

Attorney Charles G. Devine, Jr. successfully defended an appeal by a plaintiff, medical provider, which claimed that it was due Personal Injury Protection benefits even though the insured failed to comply with the terms of the policy.  The Appellate Division of the District Court agreed with Attorney Devine's contention that a PIP claimant’s failure to comply with the coordination of benefits provision extinguishes a health-care provider’s right to maintain a claim under c. 90 §34M and that an insurer’s tender in accordance with the decision of Fascione v. CNA Insurance of the full amount of PIP benefits satisfies any obligation the PIP insurer had to the claimant, justifying summary judgment in its favor. 

A copy of the John Duffy v. Amica Mutual Insurance Company decision is available here.









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• February 7, 2012: Trial Judge’s Failure to Instruct the Jury on Regulation’s Legal Significance Overturns Defense Verdict

The Massachusetts Appeals Court reversed a defense verdict and held that a trial court judge’s failure to instruct the jury on the legal significance of a regulation placed into evidence was prejudicial error.  

Attorney Charles G. Devine, Jr. of Devine Barrows, LLP successfully argued the appeal of the matter of Campbell, et al. v. Cape & Islands Healthcare Services, Inc., et al., 81 Mass. App. Ct. 252 (2012) in which the Court held that, where evidence supports a finding that a Massachusetts regulation was violated, the trial court judge, upon request, must instruct the jury as to the legal significance of the regulation. 

In Campbell, the plaintiff, who had a history of an unsteady gait, weakness, and muscle inflammation, presented to Cape & Island Healthcare Services to have blood drawn for a three-hour glucose tolerance test. The evidence suggested that the plaintiff exhibited signs consistent with hypoglycemia during the test and upon his discharge, three hours after his arrival at the clinic.  Shortly after leaving the clinic, the plaintiff suffered severe injuries when his vehicle struck a utility pole while he was in a hypoglycemic state. 

The plaintiff filed a medical malpractice claim against the clinic and various individual defendants. The theories of liability against the clinic included, among other things, that its policies and procedures did not comply with 105 C.M.R. § 180.042, which established certain minimum standards for the operation and maintenance of specimen collection stations. At trial, the plaintiff elicited testimony from five witnesses regarding the relevance of the regulation pertaining to the operation of the clinic and the alleged negligence and manner in which the defendants failed to comply with the regulation; however, no witness testified affirmatively that any of the defendants violated the regulation. At the close of evidence, plaintiff’s counsel requested an instruction on the legal significance of the regulation, to wit, that if the jury found that the defendants violated the regulation, they could consider the violation as evidence of 
negligence. The trial court judge did not give the instruction, on the grounds that no witness had testified that any of the defendants violated the regulation. The jury returned a special verdict in favor of all defendants. 

On appeal, the Appeals Court held that the trial court judge had a duty to instruct the jury on the legal significance of the regulation, and his refusal to do so was error. The Court rejected the trial court judge’s reasoning that testimony of a violation was required in order for the plaintiff to receive the requested instruction, and reasoned instead that the “myriad of evidence presented at trial implicated 105 Code Mass. Regs. § 180.042(A)(3), thereby making it clear that there was a potential violation of the regulation relevant to the underlying negligence claim to be decided by the jury.” Accordingly, the Court reversed and remanded the case for a new trial.

See published decision of Campbell, et al. v. Cape & Islands Healthcare Services, Inc., et al., 81 Mass. App. Ct. 252 (2012).



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• March 19, 2012: Claimant’s Failure to File PIP Application Justifies Denial of Medical Provider’s Claim

Attorney Charles G. Devine, Jr. of Devine Barrows, LLP successfully contended that a PIP claimant’s failure to file a PIP application justified denial of a claim for PIP benefits brought by the insured’s health-care-provider. The Court noted that the insured had assigned her claim to the plaintiff, Advanced Spine, and that “if anything, the perpetrator of the delay was Advanced Spine itself.” The Court held that the 21 month delay in submitting the information was not “as soon as practicable” and therefore untimely, but that Amica was required to prove prejudice to properly deny benefits. The Court found that the Amica adjuster was unable to investigate the claim, submit records for review and make a determination that the claim was for reasonable expenses for necessary medical services and investigating a causal relationship between the accident and the medical charges. The Court noted that the claim representative requested additional information from the insured, but received none. The Court found that prejudice had been established. 

See published decision of Advanced Spine Centers, Inc. v. Amica Mutual Insurance Company, 2012 Mass. App. Div. 45 (2012) ​




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• March 23, 2012:  Health Care Provider Fails to Establish a Grounds for Recovery Where PIP Insurer Pays Medical Bill based upon a Business Judgment.

In Essex Chiropractic Office v. Amica Mutual Insurance Company, 2012 Mass. App. Div. 51 (2012), Attorney Joseph Rendini of Devine Barrows, LLP successfully argued that the PIP insurer had both a valid reason for not paying the insured’s medical bills to the insured’s health care provider and that a Fascione v. CNA payment was not related to the merits of Essex’s claim. Accordingly, the insurer’s tender in accordance with the decision of Fascione v. CNA of the full amount of PIP benefits was deemed to satisfy any obligation the insurer had to the health care provider justifying summary judgment in its favor.


See published decision of Essex Chiropractic Office v. Amica Mutual Insurance Company2012 Mass. App. Div. 51 (2012).

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August 16, 2013:   Claimant Fails to Coordinate PIP Benefits; Medical Provider Loses Right to c. 90 
                              §34M Payment. John Duffy v. Amica Mutual Insurance Company.

February 7, 2012: Trial Judge’s Failure to Instruct on Regulation’s Legal Significance Overturns
                              Defense Verdict. Campbell, et al. v. Cape & Islands Healthcare Services, Inc., et 
                              al., 81 Mass. App. Ct. 252 (2012). 

March 19, 2012:    Claimant’s Failure to File PIP Application Justifies Denial of Medical Provider’s 
                              Claim.  Advanced Spine Centers, Inc. v. Amica Mutual Insurance Company, 2012 
                              Mass. App. Div. 45 (2012).

March 23, 2012:    Health Care Provider Fails to Establish Grounds for Recovery Where PIP Insurer 
                              Pays Medical Bill based upon a Business Judgment.  Essex Chiropractic Office
                              v. Amica Mutual Insurance Company, 2012 Mass. App. Div. 51 (2012).
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