Until recently, blood samples taken from alleged drunk drivers had to be drawn using a non-alcoholic swab. Generally, officers carried evidence packs and medical technicians and nurses had easy access to non-alcoholic swabs and sterilization liquids. It was never a problem until recently a St Louis politician allegedly had his DWI charges dropped simply because of the use of the alcohol swab. I find that difficult to believe in that particular case as there was ample evidence to proceed without a blood test against the politician; however, it has now been used as an excuse to curtail every one's rights
October 2007 Archives
Workers Compensation Missouri - OBGYN Nurse Slipped and Fell Outside of Operating Room - Permanent Back Injury - Multiple Spinal Fusions and Surgeries
My new client who has been a nurse for over 20 years can no longer work due to her work related injuries. She slipped and fell at work outside the operating room and violently hit a concrete wall twisting her beck and injuring her neck and shoulder. She has undergone 3 surgeries to her back to fuse her lumbar spine and will likely never be able to work again.
Workers' Compensation cases in Missouri and most other states exist whenever an employee is injured at work and while in the course and scope of their job duties. The goal of workers comp is to give an injured worker financial relief due to a work related injury that prevents them from being able to perform their job.
In the case of this particular client, her back injury will prevent her from being able to work in the medical field ever again. This is referred to as a permanent and total disability. Due to the back injuries, standing for long periods of time and strenuous and stressful work are impossible for my client.
Many people have a negative attitudes to injured workers, considering them fakers or looking for an easy buck. My clients that have permanent disabilities that prevent them from working are often financially and emotionally devastated due to the inability to financially plan for their future and carry on their once normal lives. Even though we are able to get them generous compensation for their injuries, you cannot put a price on your basic physical abilities and well being.
Missouri Medical Malpractice Law - Affirmative Defenses Based on Tort Reform Laws Stricken from the Pleadings
In a previous entry I discussed the applicability of tort reform on medical malpractice actions in Missouri. See MISSOURI MEDICAL MALPRACTICE AND WRONGFUL DEATH ENTRY
Specifically, I discussed a case I am handling where we filed the wrongful death case as a result of medical malpractice prior to Missouri Tort Reform which went into effect in August 2005. Based on discovery we added an additional party after the tort reform bill went into effect. The new defendant, a medical group named Southwest Medical Center, claimed that tort reform defenses should apply to them because they were added after tort reform.
As previously discussed, the Judge denied a change of venue motion asserted by the medical group holding that tort reform did not apply to their case because there was not a new cause of action and therefore the law at the time of the original filing applied.
I was waiting on an additional Order from the Court ruling on our Motion to Strike the Affirmative Defenses of the medical group. Just recently we received that Order and as expected the Judge Ordered that the medical group's affirmative defenses based on the new tort reform laws must be stricken from their pleadings.
Missouri Medical Malpractice - Cause of Action Filed Before Tort Reform and New Party Added After Tort Reform - Not a New Cause of Action Therefore Tort Reform Laws Do Not Apply Despite Addition of New Medical Malpractice Defendant
In early 2005 we filed a medical malpractice and wrongful death claim against an area hospital and surgeon as the result of the death of patient after gastric bypass surgery. In the fall of 2005, after tort reform went into effect on 8/29/2005 radically altering medical malpractice laws in Missouri, we added a medical group that we discovered was the surgeon's employer.
Prior to tort reform venue was in the county where the negligent medical treatment occurred, however, post tort reform medical malpractice wrongful death cases was in the county where the first medical treatment for the medical condition was received. Additional, tort reform gives health care providers additional affirmative defenses that make pursuing these case very difficult under the new laws.
So the question in our case became, whether or not adding the medical group after tort reform constituted a new cause of action and thus requiring the application of the tort reform laws to the newly added defendant.
Missouri Statute §538.305 provides that the new medical negligence Tort Reform statutes "apply to all causes of action filed after August 28, 2005." Therefore, is the Amended Petition adding the medical group the same cause of action as the original cause of action, that we filed prior to tort reform?
The Judge in our case ruled in our favor stating that the basic operative facts have not changed and therefore adding the new defendant after tort reform was not a "new cause of action"and therefore the new tort reform laws do not apply to our case. This is a critical ruling and very helpful to Plaintiffs in Missouri pursuing cases filed around the time of tort reform. The Judge ruled that venue does not change, effectively ruling that the new statutes do not apply for any of the tort reform based affirmative defenses raised which would severely hamper our clients' claims.
Thus, I expect the Judge to rule in our favor again and strike the post tort reform defenses raised by the medical group; mainly the non-economic loss caps and critical evidentiary rules.
Jury Verdict - Punitive Damages - Intentional Vehicular Battery - Man Intentionally Struck My Client with his Vehicle - Sikman v. Toroslu - Malicious Prosecution is Our Recourse
This week in St Louis Missouri after a two day jury trial a city jury awarded my client actual and punitive damages as a result of personal injury after a man intentionally drove his car into him.
In March 2006 after a disagreement the parties had about another issue Sikman walked to his car and verbally told Toroslu to get out of his way or he was going to run him down. Toroslu remained next to the vehicle asking Sikman to wait for the police to resolve their disagreement, however, Sikman got into his car, made a sharp left turn, and struck Toroslu knocking him to the ground.
Toroslu did not plan on filing a lawsuit against Sikman as he was not hurt that bad and only bruised and scraped. However, Sikman filed a lawsuit against Toroslu for battery and property damage claiming that Toroslu punched his car mirror wanting about $600 in damage and punitive damages. Therefore, it was only natural to file a counterclaim as part of defending a frivolous lawsuit.
Frivolous lawsuit is a term used a lot but in most cases it is used to describe a lawsuit that someone simply does not like and is actually not frivolous. People often put that stamp on lawsuit s that they disagree with despite having legal and factual merit.
The lawsuit filed by Mr. Sikman is a perfect example of a truly merit-less and frivolous lawsuit. Without any evidence, he claimed that the run down of my client never occurred and the mirror of his car was damaged as a result of Toroslu allegedly punching it. He had no witnesses to support his claim, and even better yet, after brief investigation I found four independent witnesses who all saw the incident and each and every one of them agreed with Toroslu's version of being intentionally run down by Sikman. But wait, it gets better! All the witnesses testified that Sikman tried to bribe them with cash and gifts to get them to testify in favor of him; what a piece of work.
Even after all of this evidence came out at trial, Sikman still allowed his claims to go to the jury, and of course, the jury rejected his claim against Toroslu. Additionally, we filed a counterclaim on behalf of Toroslu as part of the defense of this frivolous claim by Sikman, we stipulated to $1 in actual damages as Toroslu was hardly injured from the altercation; thus we were able to get a punitive damages award of $750; 750 times the actual damages of $1 that we claimed.
What is next? Sikman's lawyers have vowed to fight the punitive damages award and force Toroslu to spend more money on legal fees and expenses; over what? $750? it is crazy.
Based on the evidence presented at trial and the verdict reached by the jury, we now have an excellent malicious prosecution claim we will file on behalf of Toroslu seeking attorney fees spent on defending Sikman's obnoxious and patently frivolous claim and seek additional punitive damages for the malicious prosecution.
This is the deterrent the law has established to stop truly frivolous claims and allow a remedy for those that are maliciously prosecuted such as my client was in this case.
Missouri Injury Lawyer named Best of Blawgs by the St Louis Daily Record for the Missouri Injury Law Blog
Missouri Injury Law Blog was named as one of the best blawgs. See entry below from the August 26, 2007 issue of the St Louis Daily Record.