Pierce & Mandell, P.C.

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Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

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Mass HIway likely to see changes in the near future

Thursday, December 01, 2016

By Karen Rabinovici

The state-sponsored Health Information Exchange, known as the Mass HIway, was launched in October 2012, offering doctors’ offices, hospitals, laboratories, pharmacies, skilled nursing facilities, and other healthcare organizations a method by which to securely exchange information electronically with each other.  The aim of the Mass Hiway was to improve care coordination and delivery, avoid readmissions and medical errors, reduce administrative costs and duplicative testing, enhance communication among providers, increase patient engagement, and improve public health reporting and analytics.  One of the Mass HIway’s main functions is secure direct messaging between participating users, and the Mass HIway plans on soon offering “Event Notification Services,” which will allow for the transmission of notifications to a patient’s health care providers when the patient is admitted to any participating hospital in the state.  All providers, regardless of affiliation, location, or differences in technology, may use the Mass HIway.

The Mass HIway is now likely looking at some changes in the near future.  On Friday November 4, 2016 the Executive Office of Health and Information Services released proposed regulations specific to the requirement for all providers to implement a fully interoperable (meaning, having the ability to send and receive HIway direct messages) electronic health record that connects to the Mass HIway, and the establishment of a mechanism that allows patients to opt-in or opt-out of the MassHIway.  The proposed regulations require specific providers (acute care hospitals, medical ambulatory practices with ten or more licensed providers participating in health care delivery, and all community health centers) to connect to the MassHIway between 2017 and 2019, while other types of providers (behavioral health entities, dental clinics, nursing homes) will be required to connect at a date to be specified, with at least one-year notice (and no earlier than January 2018).  Connection requirements will be established through future regulations.  The proposed regulations would require that providers that are required to connect to demonstrate compliance by attesting to implementing at least one “Use Case of HIway Direct Messaging.”  Examples of this are a hospital using the Mass HIway to send discharge summaries to a receiving facility, or a primary care physician practice using the Mass HIway to send referrals.  The proposed regulations require acute care hospitals to send Admission, Discharge, and Transfer messages using the Mass HIway.

Regarding the opt-in or opt-out mechanism, the proposed regulations will require that a provider must provide written notice to patients that it will use the Mass HIway, and must include in this written notice instructions in the event the patient chooses to opt-out.  Thereafter, either the provider will inform Mass HIway of the patient’s decision to opt-out, or will provide the patient with instructions on how to do so.

A public hearing was held by the EOHHS on Monday November 28, 2016, and public comments were accepted until Tuesday November 29, 2016. Additionally, the EOHHS accepted electronic written testimony.

The proposed regulation can found here.

Bill Mandell Appointed Co-Chair of Boston Bar Association’s Health Law Section

Friday, October 28, 2016

Pierce & Mandell, P.C. shareholder Bill Mandell has been appointed by BBA president Carol Starkey as the 2016-2017 Co-Chair of the Boston Bar Association’s Health Law Section. Bill has been a member of the Health Law Section’s Steering Committee for several years and previously served as the BBA’s Solo/Small Firm Section Co-Chair. Bill brings a wealth of knowledge and experience to the work of the Section, which is dedicated to promoting excellence and diversity in the field of health law.

Pierce & Mandell’s Dennis M. Lindgren to Poll Watch in Miami

Friday, October 28, 2016

Pierce & Mandell, P.C. shareholder Dennis M. Lindgren is part of a non-partisan effort to provide poll-watchers for Miami precincts on Election Day. The volunteers will monitor election sites and assist voters who may be turned away from the polls or ordered to cast a provisional ballot. The poll-watchers will also assist in resolving disputes, or pursuing further recourse if necessary. Dennis is quoted about his participation in these efforts in the most-recent edition of Lawyers Weekly, which you can access by clicking here.

Pierce & Mandell Attorneys Recognized as Super Lawyers and Rising Stars 2016

Thursday, October 27, 2016

Pierce & Mandell, P.C. is proud to announce that once again partners Bob Pierce, Bill Mandell, Michael Fee, Tom Kenney, Bob Kirby, and Dennis Lindgren have been selected as Massachusetts Super Lawyers for 2016. Associate Curtis Dooling was designated as a Massachusetts Rising Star for 2016.


Bob Pierce was recognized as a Super Lawyer in the practice area of Civil Litigation/Defense; Bill Mandell in Health Care; Michael Fee, Tom Kenney, and Bob Kirby in Business Litigation; and Dennis Lindgren in Personal Injury/Plaintiff. Curtis Dooling was recognized as a Rising Star in Land Use/Zoning.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations, and peer evaluations. Rising Stars are those attorneys under the age of 40 who have been nominated by peers for excellence in their chosen practice area. Candidates are then evaluated utilizing twelve indicators of peer recognition and professional achievement. No more than 2.5 percent of eligible lawyers in Massachusetts are named to the Rising Star list each year.

The Super Lawyers supplement will be published in the November, 2016 issue of New England Magazine and is widely distributed in regional publications and across the country.

Pierce & Mandell Attorneys Sponsor BBA Annual Meeting and Receive President’s Award

Thursday, October 27, 2016

Pierce & Mandell was a proud sponsor of the Boston Bar Association’s (“BBA”) Annual Meeting on October 20th at the Copley Westin Hotel, at which Pierce & Mandell partner, Michael C. Fee received the President’s Award from BBA President Carol Starkey in recognition of his work as a member of the Association’s Amicus Committee.

For more than twenty years, through the work of the Amicus Committee, the BBA has had a voice in some of the most important legal issues of our time. Most recently, the BBA filed an amicus brief in the case of Bridgeman v. District Attorney, urging the Commonwealth’s highest court to vacate all outstanding drug convictions in which disgraced lab employee Annie Dookhan was the primary or secondary chemist. The BBA argued that the SJC should now impose a global remedy that secures access to justice and the fair administration of justice for each of the defendants in these cases and, critically, takes a significant step toward bringing the Dookhan scandal to a final resolution.

Pictured from right to left, at the Annual Meeting, are Fee, Dennis Lindgren, Tom Kenney, Bill Mandell, Jessica Long from the Conference of Boston Teaching Hospitals, and Zachary Badore, Northeastern student and P&M intern.

Pierce & Mandell Attorneys Achieve Defense Verdict

Wednesday, September 21, 2016

Bob Pierce and Lena Finnerty obtained a defense verdict on behalf of their client in a jury trial in Middlesex Superior Court that concluded on September 19, 2016.

The plaintiff in the case claimed that he suffered serious head injuries when he fell on black ice in the parking lot of the office park owned by Pierce & Mandell’s clients.  Plaintiff claimed in excess of $1 Million in lost earning capacity, and asked the jury for an award of over $4 Million.  The firm defended the case on the basis that the property owner client was not negligent, and that if the plaintiff did fall on black ice, the fall was caused by his own negligence.

The case was tried over 7 days, and the jury deliberated for approximately 2 ½ hours.  The jury determined that Pierce & Mandell’s client was not negligent, and the plaintiff was awarded nothing.

Bob Pierce has now achieved complete victory for his clients in well over 80% of the cases he has tried.

Dennis M. Lindgren Participates in MCLE Roundtable on Practicing with Professionalism for New Lawyers - Boston, MA

Tuesday, September 13, 2016

On September 12, 2016, Pierce & Mandell shareholder Dennis M. Lindgren participated in a lunchtime roundtable discussion for approximately 100 newly admitted lawyers in a program sponsored by Massachusetts Continuing Legal Education (MCLE).  Pursuant to Supreme Judicial Court Rule 3:16, newly admitted lawyers in Massachusetts must take a one-day professionalism course within 18 months of admission.  Throughout the day, new lawyers attended seminars and training on a variety of topics including ethics, court practice, managing a law practice and client funds, and successful attorney-client relationships.  During the lunch session, Lindgren and four other experienced attorneys (in both criminal and civil practice), spoke for about an hour, fielding questions from attendees on all manner of practical legal issues like managing difficult clients, interacting with court personnel, and the advantages to developing a mentor relationship with a more senior attorney.  “This is the fourth roundtable I have participated in for MCLE’s Practicing with Professionalism course.  Each time the questions are different, but what is constant is how enjoyable it is to talk directly with the newly admitted attorneys and hopefully, in some small way, help them along the road to developing a successful legal career.”   For more information on MCLE’s Practicing with Professionalism course, please click here.

Tom Kenney Comments on the Supreme Court’s Recent Decision to Trim Remedies for Copyright Owners

Friday, August 26, 2016

For copyright owners, a copyright registration provides substantial benefits.  A copyright registration grants the owner the right to collect “statutory damages” against the infringer – ranging from $750 to $30,000 per violation.  Additionally, a registrant may recover from the infringer the attorneys fees it incurred in prosecuting litigation against the infringer.  Traditionally, copyright owners have been able to use the threat of statutory damages and attorneys fees to quickly and efficiently stop infringers and effectuate beneficial settlements.

However, the copyright landscape is changing.  Recently, in Kirtsaeng v. John Wiley & Sons, Inc., the United States Supreme Court made it more difficult for copyright owners to recover their attorneys fees from infringers.  Previously, many courts awarded attorneys fees to the prevailing party in copyright cases as a matter of course – declining to award attorneys fees in only the rarest of cases.  The Kirtsaeng Court rejected that practice, ruling that a Court should award attorneys fees to the prevailing party only where the losing party’s position was “objectively unreasonable” – meaning that the party did not have a good faith basis to deny that it infringed or to vigorously defend against the lawsuit.

The impact of this shift is unclear.  Will infringers resist monetary settlements – knowing that copyright owners are less likely to recover attorneys fees and thus less likely to pursue litigation once the infringer ceases its infringing activities?  Will copyright owners need to consider accepting a prompt cessation of infringing activities and forego insistence on a monetary recovery?  Only time and experience will tell.

A company’s brand and goodwill, represented by its intellectual property, often are its most valuable assets. Pierce & Mandell counsels clients on all aspects of intellectual property law, including registration of copyrights and trademarks, as well as intellectual property disputes and litigation.Contact Tom Kenney at 617-720-2444 or tom@piercemandell.com to discuss protection of these vital business assets.

Pierce & Mandell Takes to the Links for Children’s Charities

Monday, August 15, 2016

Pierce & Mandell partners Tom Kenney, Bob Pierce, Bob Kirby and Mike Fee tore up Woodland Country Club recently at the Newton Needham Chamber of Commerce’s annual golf tournament. This year’s affair was attended by over 120 committed Metrowest business persons, and raised thousands of dollars for Family Access of Newton (www.familyaccess.org), a 100 year old organization that empowers and strengthens families and the community through programs that nurture child development, promote effective parenting skills and support working parents. We were proud to take part and contribute to this very worthy endeavor.

Michael C. Fee Helps Boston Bar Association's Zoning Reform Bill Become Law

Friday, August 12, 2016

Pierce & Mandell, P.C. partner, Michael C. Fee, a member of the Council of the Boston Bar Association, recently participated in the BBA's efforts to pass a zoning reform measure that the organization has championed since 1995.  House Bill 3611 was signed into law by Governor Baker on August 5, 2016 and provides much needed clarification to the Massachusetts Zoning Act, G.L. c. 40A, § 7.

Most do not realize that the Massachusetts zoning statute was first enacted into law in the 1920's. While it underwent significant overhaul in both the Fifties and Seventies, in many ways it remains today an historical anachronism, full of dense language and land use principles perhaps better suited to less complicated times.  Every legislative session in recent memory has seen efforts to promote comprehensive zoning reform, however, there is rarely consensus among the most highly interested stakeholders. Neither, developers, builders, housing advocates or municipalities appear able to agree on what is right, and what is wrong with G.L. c. 40A.

Consequently, the more effective approach, and the one pursued by the BBA in this instance, is to propose legislation that tackles the most glaring ambiguities in the zoning statute, section by section. House Bill 3611 amends G.L. c. 40A, § 7, which requires municipalities to bring enforcement actions against non-compliant structures or uses no later than ten years after the inception of such structure or use. The problem with the old provision was that it was silent as to the legal status of those structures which survived the applicable statute of limitations. One would think that such structures would automatically become pre-existing, non-conformities, subject to the grandfather rights explicitly detailed in G.L. c. 40A, § 6. However, G.L. c. 40A, § 7 omitted any such explicit reference, and left non-compliant structures that had survived the statutory limitations period in a kind of legal limbo.

The issue came to the forefront recently, as several appeals court panels issued inconsistent rulings regarding the status of such surviving structures. The newly enacted legislation cures the section's ambiguity by granting these structures recognized legal status as a preexisting non-conformities protected under G.L. c. 40A, § 6. The change will provide greater clarify to owners, buyers and lenders that participate in transactions involving these types of property rights. To read the BBA's press release regarding the recent enactment of H3611, click here.


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