Missouri Injury Law Blog

You go to the hospital emergency room, and the attending doctor is negligent, resulting in an injury or, even worse, a relative dies. If your injuries or a relatives death warrant more than 1 million dollars you better hope the doctor is an employee or agent of the hospital, the deeper pocket. Chances are, he is not an employee but just on staff with privileges. This poses problems in serious injury and death cases because oftentimes 1 million, the amount of insurance most doctors carry, is not enough. A vigilant injury lawyer must find out, is the hospital's insurance available to compensate for the wrong?

Missouri courts have listed several factors to aide in deciding whether or not a doctor is acting as an agent of a principal, and therefore, within the course and scope of the agency with a hospital or health care organization. The factors are listed and applied in Keller v. Missouri Baptist Hospital, 800 S.W.2d 35, 38 & 39 (Mo. Ct. App. 1990) and include the following:

A. Control over the physician’s practice;
B. The contract requires full time employment;
C. The parties to the contract contemplated a long term relationship;
D. Full time employment by one employer;
E. Right to terminate physician per the agreement; and
F. Principal undertaking to provide medical malpractice insurance.

If these factors applied to an individual case demonstrate that the doctor was an agent of another entity and acting within the course and scope of his agency, then yes, more insurance coverage is out there.

I have handled this issue before and the determination is very fact specific. Healthcare organizations are legally separating themselves from the doctors that a lay person would think is an employee or agent in order to avoid and limit legal liability for their mistakes. With the addition of the 2005 Tort Reform laws passed by Gov. Blunt, the desired effect of shielding health care professionals from liability for their negligence is quickly becoming a dire but true reality of doctors and hospitals being above the law.

We filed a Missouri medical malpractice and wrongful death case against a defendant doctor and hospital prior to the new tort reform statutes that went in to effect on August 28, 2005. After August 28, 2005 we added a third medical malpractice and wrongful death defendant after discovery revealed the doctor was an employee of a Medical Group. Thus the Medical Group is responsible under agency theories. We settled the case with the doctor and the hospital recently and are still pursuing the employer. The employer is trying to claim that since we added them after the tort reform provision went into effect and the other parties have been dismissed venue needs to be redetermined, mainly because they want the case out of St Louis City and moved to St Louis County.

This case or "cause of action" arises from one set of operative facts that the doctor failed to timely diagnose and treat post operative complications of the decedent which lead to his untimely death. The original suit was filed prior to August 28, 2005. Discovery revealed that the defendant doctor was an employee of defendant Medical Group at the time of the medical negligence and that he was working within the course and scope of his employment with the group.

Section §538.305 provides that the new medical negligence Tort Reform Statutes "apply to all causes of action filed after August 28, 2005." The issue is, whether the amended Petition adding the Medical Group is the same cause of action as the original cause of action. Therefore, the term "cause of action" becomes critical to the analysis. This term has been given different meanings by different courts in varied contexts. See lA C.J.S. Actions §14 (2005).

In Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W 3d 315, 318 (Mo. banc 2002), the Supreme Court defined cause of action using the definition given in Blacks Law Dictionary, as a "group of operative facts giving rise to one or more bases for suing." Under this definition, it is apparent that Plaintiffs’ Amended Petition adding the Medical Group raises the same facts for suing under the same theories. The Court continued to state that “ a cause of action remains the same even tough additional or different theories of evidence or law might be advanced to support it. Id. The term “cause of action” refers to the negligent act or omission. State ex. rel. Burns Rowe v. The Honorable Carolyn C. Wittington, case # SC87962 (Mo 2007).

In Collins v. Burg, 996 S.W. 2d 512 (Mo. App. E.D. 1999), the Court noted that the test whether a cause of action is the same involves not only whether the nucleus of operative facts is essentially the same, but also whether the parties necessary to sustain the claim are the same. Id at 515.

In our case, the operative facts are the level of care rendered by the doctor while in the course and scope of his employment. In the original Petition, it is alleged that the doctor acted negligently and now the actual employment of doctor by Medical Group is undisputed, the only dispute is course and scope, not actual employment.

The Medical Group was not "necessary to sustain the claim." Causes of action have long proceeded and juries have long been instructed on the liability of the principal for the conduct of the agent without the agent being a party. Therefore, the new laws do not apply because this cause of action was previously filed. The addition of the Medical Group as a Defendant was not necessary and no theory of liability is raised in the amended Petition, which was not raised in the original petition.

Continue reading "Missouri Medical Negligence and Wrongful Death - Venue after 2005 Tort Reform - Case Filed before Tort Reform and Added Party After Tort Reform - Does the New Venue Statute Apply?" »

Kathy, a successful self employed business owner, suffered personal injury as the result fo a dangerous condition at the premises of the Lowe's garden center in Rolla Missouri. She often visits the garden center as she runs a landscaping company. It is common for there to be standing water, however, there was standing water that was different this day and there was no warning of the dangerous condition. When the plants are given food through a liquid solution it makes the water particularly slippery, much more so than typical standing water. Lowes failed to put up signs informing patrons of this condition and therefore Kathy had no notice of this condition despite the fact she knew she was stepping into standing water.

Upon stepping into this unmarked and dangerous condition Kathy fell and injured her knee and hamstring. Currently she is being treated for a torn meniscus cartilage in her knee, torn hamstring, and other injuries to her knee.

Personal injury lawyers know the issues presented by this case and many premise liability cases in Missouri are (1) Was there a dangerous condition, (2) notice of the condition, constructive or actual, (3) duty to make safe; (4) damages; and (5) comparative fault of the injured party, i.e. was the condition "open and obvious". Particularly in this case the first defense reaction will be that she saw the water and knew she was stepping into it so she is partially at fault. Not the case here! This was not typical water, but water infused with plant food making it very slick as compared to normal standing water. This is a condition that Lowe's generally marks with signs, but did not on this occasion.

In this case, Lowe's breached their duty to inspect and make their premises safe for business customers (a higher duty than private property not for the operation of a business) by failing to mark a known dangerous condition that was not open and obvious as it appears to be regular water.

This is a case were I feel it is reasonable to demand payment based on Lowe's being 100% at fault and not apportioning any fault to Kathy as the fact that water was there was open and obvious, but the nature of this water was not open and obvious.

In the past, Sansone Law, LLC has recovered for many clients that have been injured as a result of unreasonably dangerous conditions on a business premises. For examples, see our sample verdicts.

A car accident occurred in Illinois as the result of a truck going approximately 60 MPH and ramming into the back of our client's, Donald's, vehicle that was sitting at a stop light. We are pursuing two claims on behalf of Donald, a personal injury claim against the at fault driver as a result of his negligence and an Illinois Workers' Compensation claim as Donald was driving a company vehicle at the time of the accident and was on duty for is employer.

Personal injury claims and Workers' Compensation claims vary in many ways. In Workers' Compensation claims the amount of money, or damages, Donald is entitled to is based on his injury translated into a disability rating which is then calculated by different factors depending on what part of the body is injuried and how much he earned per week at the time of the injury.

The personal injury claim is filed through the Illinois court system as a negligence case against the driver. The primary issues are liability and damages, or in other words, whose fault it is and how much money the victim should get as a result of that fault and the resultant injuries. These cases are ultimately decided by a jury, if a settlement is not reached, and damages are based on the jury's determination based on bills, economic damages, and pain and suffering, non economic damages. There is no magic formula for determining the damages but it is left to the jury.

When both types of cases are filed, the Workers' Compensation insurance company is entitled to a lien on the proceeds from the personal injury case. This lien is based on the fact that in workers' compensation claims liability is not an issue and medical bills are paid by the work comp insurer, entitling them to a lien to recover their expenses for paying the medical bills as the result of the 3rd party's negligence.

It is always worthwhile to pursue both the work comp case ans the negligence case when their is an a fault party that is not also employed by the same employer. Many clients worry about the lien, however, this can often be negotiated down to make sure the client receives a good recovery on both cases, and ultimatley a larger recover than if they pursued only one case.

After a traumatic motor vehicle accident in Illinois involving a large pickup truck and a smaller sedan with three severly injured passengers, the families of the victims desperately needed a personal injury lawyer and contacted us, we immediately cleared our schedule and traveled to the hospital in Illinois to visit the families.

Our investigation of the truck accident revealed that the driver of the pickup truck was drunk, had several bottles of liquor in his car, and was doing about 80 MPH when he struck the sedan that was coming to a stop to make a turn. The impact from the truck threw the sedan about 150 yards into a ditch and there were no skid marks from the truck evidencing that he did not even touch his brakes. The property damage to the sedan is severe and it is amazing that all of the passengers survived.

We now represent three of the passengers that were in the sedan. Two of the passengers have severe and debilitating injuries. The man in the back seat was trapped in the car for several hours and suffered degloving injuries (removal of the skin from the impact) to his face and has endured a severe and traumatic brain injury. The young girl in the back seat suffered a broken pelvis and broken neck.

When faced with a case such as this a lawyer's primary concern is insurance coverage and if there will be enough to fully compensate our clients, the victims. The sedan driver's insurance may be on the hook as she apparently stopped suddenly and may not have used her turn signal, the injured parties insurance may provide coverage under their medical payments ("Med Pay") coverage, under-insured motorist coverage, and uninsured motorist coverage. The interesting issue will be what insurance we can get to cover for the truck driver's negligence. The driver of the truck was clearly the most negligent and reckless, additionally, he is the son of a local car dealer and the truck had dealer plates on the truck. Therefore, the auto or general liability policy of the auto dealership should cover. Moreover there is a potential case of negligent entrustment of the vehicle by the parents or the dealership potentially allowing access to home owner's or umbrella coverage.

In Missouri the 2005 tort reform has severely limited the rights of victims of personal injury as the result of the negligence of someone else, and apparently that devastation to the legal justice system is not enough. Additionally, Illinois personal injury rights are under attack daily as well. The new trend is now to push for mandatory arbitration, particularly in medical malpractice cases under the guise of "Health Courts". This is essentially mandatory arbitration, taking away your right to a trial by jury. Voluntary arbitration is acceptable and very useful in our legal system in all types of cases including personal injury cases; however, it has be to be in case where arbitration is likely to produce a fair result and both parties want to forego the time and expense of a jury trial.

Recently, the Arbitration Fairness Act of 2007 was introduced in an attempt to curtail this unfair trend. With the understanding that mandatory arbitration prevents victims of personal injury and their families from having a fair opportunity to justice through the legal system when they are injured by the negligence or misconduct of others. More and more, corporations are using mandatory arbitration clauses to weaken the basic legal protections the constitution provides and further stack the deck against individuals who are forced to fight Goliath. Voluntary arbitration is an effective method to resolve disputes efficiently, but, unsuspecting consumers must not be forced into it through the fine and small print hidden on the back pages of an agreement.

Many injury victim advocates, such as AAJ, support strong consumer protection laws to keep the playing field level so that individuals can access justice and wrongdoers can be held accountable.

2007 ARBITRATION FAIRNESS ACT

Continue reading "Injury Law - Missouri and Illinois - Mandatory Arbitration in Injury Cases? An Attempt to Deny Victims their Constitutional Right to a Trial by Jury" »

Recently, an Alton Illinois woman was killed in motorcycle accident when she struck a concrete retaining wall and a tree. She died from massive head injuries, additionally, she was not wearing a helmet. Apparently, she was learning to ride the motorcycle as she had very little experience.

Unfortunately, when a motorcyclist is in a motorcycle accident in Missouri, Illinois, or anywhere else, they usually lose unless properly trained and equipped with the proper safety equipment, namely, a helmet. In Missouri, motorcyclists must wear a helmet as mandated by state law, however, this is not the case in Illinois as it is legal to ride a motorcycle without a helmet.

I have been in two motorcycle accidents and walked away from both, however, I did suffer a minor head injury from one of the motor vehicle accidents. The reason i walked away from both, I was wearing safety equipment and was trained how to react when in a motorcycle accident.

In St Louis, Missouri I was in a motorcycle accident at the intersection of Clayton and Big Bend when a driver failed to see me on my motorcycle and failed to yield and pulled out in front of me without warning. My reaction, drop the bike on its side and slide behind it. The motorcycle took most of the damage and I slide under the car and struck my head on the rocker panel. I walked away and suffered only minor injuries. If I was not wearing a helmet I would be dead.

A Missouri personal injury claim was filed against the driver through his insurance company and a favorable settlement was quickly reached after I recovered from my head injury and other back and neck injuries. The damage to the helmet makes a great exhibit for the force of the impact when pursuing these claims.

Illinois applies the same standard as Missouri. In Illinois an attorney who was retained on a contingency contract and is subsequently discharged is limited to recovery under Quantum Meruit. Hofreiter v. Leigh, 124 Ill. App 3d 1052. The fee to which you are entitled is calculated by time spent on the case in performing legitimate legal services for the client and multiplying that by a reasonable hourly rate. John v. Klecan, 198 Ill. App. 3d 1013, 1019.

Under Missouri law, an attorney discharged without good cause has a right to a reasonable fee for services rendered. The discharge of an attorney employed under a contingent fee contract will work a termination of the contingent fee agreement. Plaza Shoe Store, Inc. v. Hermel, Inc., 636 S.W.2d 53 (Mo. banc 1982). In Plaza Shoe Store the Supreme Court of Missouri held that an attorney working on a contingent fee contract who is discharged by the client without cause is entitled to recover the reasonable value of his services, as measured by his normal hourly rate and the amount of hours put into working on the case.

People often rush to hire a personal injury lawyer based on the recommendation of a friend or relative and sometimes find that they are not satisfied with their attorney or come to find that a different attorney has more experience in injury law. Many lawyers who do not handle a lot of personal injury cases take personal injury cases. So if you find you want to hire a lawyer with more experience in injury law but are afraid of what you will owe the previous lawyer and that changing lawyers will mean less money for you, do not worry, the law is on your side.

Once a personal injury lawyer is discharged (for cause or just because) the contract is legally void and the attorney has a lien for the reasonable time he or she has put into the case multiplied by a reasonable hourly fee. If the case comes to me after you discharge your lawyer I will satisfy the previous lawyers fee out of my fee, therefore, you the client will not be disadvantaged financially for switching lawyers and in most cases you will receive more money as a better result may be obtained,as we have in the past made millions on cases rejected by otehr lawyers who did not know how to recognize the issues that mattered most.