Missouri Injury Law Blog

An Illinois personal injury case has arisen from my client's use of a Fisch Electric Log Splitter. As you can see from the picture to the right, the electric motor and plunger engagement lever must each be operated by a separate hand and must each be held down during the log splitting process, forcing the user into a prone position with their face as a prime target for any ejected log pieces. The picture demonstrates the prone position the operator must be in as the right hand holds down the electric motor switch and the left hand holds down the plunger lever; both must be held down during operation.

What safety measures are in place? Wearing safety goggles which do not protect the face. What safety measures should be in place? Simple, a metal guard, an operation switch that allows the operator to step away from the machine while splitting the logs, a longer plunger handle allowing distance from the splitter bed and not forcing the operators face to held in a dangerous position prone to serious personal injury. Any one of these design suggestions by themselves or in combination would likely prevent many injuries.

In the current Illinois products liability injury case I am handling, the log piece violently jumped out of the splitter bed and struck my client in the face as he was forced to remain in the prone position during operation with no safety guard. He was knocked unconscious and soon after waking up was taken to the local emergency room. He ended up with a severely broken nose along with several contusions and lacerations to his face. He has recently undergone his initial surgery to reconstruct and repair his nose and the doctors are expecting the recovery process to require several surgeries due to the nature and extent of the facial injuries.

We are currently accepting log splitter injury cases and lawsuits nationwide. If you or a loved one have been injured or killed by this type of log splitter or one similar to it please contact us.

Posted by Benjamin J. Sansone | Permalink | Email This Post

Posted In: Our Injury Cases , Products Liability / Dangerous Products

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This week we secured a Plaintiff's verdict in favor of a bicyclist who was hit at an intersection when a driver of a pick up truck made a right turn and crossed the shoulder the cyclist was in, causing her to hit the side of his truck, get thrown from her bike, and break her elbow. The driver claimed he saw her, made and extra wide turn, and that she panicked and lost control of her bike all by herself. Additionally, the police officer, who did not witness the accident, testified against the cyclist essentially claiming the bike accident and injury was her own fault.

Despite the evidence presented by the defense we were able to overcome that bias many people have, and clearly the police officer had, towards bicyclists and our right to use the roadways and the degree of care motorists must exercise towards bike riders.

Almost no cases, at least none that are available in court records or that I know of, regarding collisions between cars and bicycles are taken to trial in Missouri. In fact, many Missouri lawyers drop bicycle accident cases or do not aggressively pursue them. The simple fact of the matter is, despite some good statutes in Missouri protecting bicyclists, there are still many laws that could be passed to protect cyclists. For example, Missouri statutes require a safe distance be maintained when passing a bicyclist, however, there is no state statute regarding the duty of a motorist to yield to a bicyclist traveling in the shoulder when making a right turn. As in the case above, the entire case had to be tried on a "failure to keep a careful lookout" legal theory as the judge would not allow me to argue failure to yield, claiming that there is no specific law creating that duty. A point that we are appealing along with a few others in an attempt to clarify Missouri bicycling law and the legal responsibility in Missouri of drivers towards bicyclists.

Posted by Benjamin J. Sansone | Permalink | Email This Post

Posted In: Verdicts & Settlements , Bicycle Accidents

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Do a simple Google search on Allstate and deceptive or any other similar word and you will find countless articles about their deceptive claims practices that are in direct conflict of their advertised public image of being in "Good Hands". Ask any injury lawyer or most individuals that have had to make an insurance claim involving Allstate to describe if they felt they were in "Good Hands" and they will describe an experience probably closer to the experience against the fictional Great Benefit insurance company in the legal drama the Rainmaker.

I have to deal with Allstate on a regular basis as a Missouri injury lawyer based in St Louis, and there is no doubt they are the most difficult insurance company to deal with as they have a deny, deny, deny attitude towards just about every claim. Whether you are making a claim against an insured of Allstate or you yourself are insured by Allstate and making a claim against them for a loss, trust me, the "Good Hands" turn into boxing gloves very quickly.

Allstate reached a new low in a recent settlement tactic they tried on one of my clients. She was severely injured as the result of a car accident when a high speed drunk driver, insured by Allstate, slammed into the rear of her vehicle as she was waiting at a red light in Belleville Illinois. The drunk driver has a policy limit with Allstate of $100,000; however, despite my client's severe injuries and the gross negligence and recklessness on behalf of Allstate's drunk insured, they have offered less than half of the policy limits. So we filed a lawsuit and Allstate's shady settlement tactic was that after we filed a lawsuit, the at fault driver, through Allstate's lawyers, threatened filing bankruptcy unless my client settled for the above mentioned low offer. Essentially, saying you better take this low offer we have made or you get nothing.

Does bankruptcy preclude an injured victim from recovering? In most cases NO. Even if a negligent driver files bankruptcy, this does not preclude the injured victim to the insurance coverage carried by the driver when the accident occurred. Therefore, in the above case, even if the driver files bankruptcy and it is granted, my client can still recover up to the $100,000 insurance policy. Moreover, any judgment or settlement arising from the injuries of a drunk driving accident are not dischargeable in bankruptcy. Bankruptcy court does not let someone get out of a debt incurred as a result of their intentional or reckless conduct, such as a drunk driving accident. Therefore, this debt would not be dischargeable in bankruptcy and Allstate know it. However, it is a tactic that is very influential on a non-lawyer or a lawyer not familiar with the bankruptcy court.

Our response to Allstate, we called them out, demanded policy limits or we will pursue a judgment in excess of the policy limits and punitive damages against their insured (likely making him personally liable beyond his insurance coverage for their refusal to pay). Now, if you were Allstate's insured in this case, would you feel as if you were in "Good Hands"?

Posted by Benjamin J. Sansone | Permalink | Email This Post

Posted In: Injury Law

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First of all, I am not supporting or opposing abortion rights in this post, on a personal level I disagree with the pro-choice position, however, on a legal level I believe it is a State issue. This post discusses a recent development in Missouri medical malpractice law.

State Representative Muschany is sponsoring a bill that would allow an exemption to medical malpractice damage caps for women making a Missouri medical malpractice claim related to an abortion procedure. Clearly an attempt to curtail abortion, however, my focus is on the hypocrisy of our legislature in their logic that the damage cap bars these women from adequate justice but for everybody else damage caps are OK and do not bar the victims and their family from justice simply because the negligent party was a health care provider.

When asked why he supported this exemption he stated "I want to protect young, vulnerable women", additionally he stated while women may not suffer economic damages resulting from a botched abortion, they confront “considerable pain and suffering damages". What about other people that suffer a botched surgery or medical procedure that do not incur significant economic damages but confront considerable pain and suffering? What about an exemption for them, or does the insurance lobby have too much influence over him and others for them to admit it! He is making an argument that is counter-intuitive to the 2005 tort reform bill on damage caps.

As a Missouri medical malpractice injury lawyer I can site a dozen cases off the top of my head that victims and their families have brought to me where the malpractice is blatant, however, due to the lack of economic damages they are limited to $350,000 (assuming the legal claim is 100% successful) for serious injury or even death. Making the case economically infeasible to pursue as the medical malpractice insurers and their lawyers know the Plaintiffs have to spend significant amounts of money to bring the case and juries often side with doctors due to a successful propaganda campaign wages for the last decade.

As you may know, in 2005 the State of Missouri passed tort reform which imposed damage caps of $350,000 (not adjusted for inflation) on medical malpractice cases for non-economic damages (all damages that a victim does not have a bill for, i.e. daily pain and suffering of living with an injury). Therefore, if an elderly person with no income and no dependants dies suddenly as a result of a medical provider's negligence, then the family is limited to $350,000; regardless of the pain and suffering inflicted by the negligent act.

Sources:

The Columbia Missourian - 2/7/2008 Article

Missouri Bill Tracking

Posted by Benjamin J. Sansone | Permalink | Email This Post

Posted In: Medical Malpractice

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As most experienced injury lawyers will agree, Missouri and Illinois medical malpractice cases are often the most difficult type of personal injury cases to pursue. Doctors, hospitals, health care providers and medical malpractice insurance companies fight all medical malpractice lawsuits and claims persistently and unscrupulously, even when liability is clear. Clear liability does not matter to the health care industry and medical malpractice insurers, they always deny legal responsibility.

Many victims of medical negligence and their families that I have represented in St Louis and across the state of Missouri often cannot believe the medical providers unashamed denial of fault, especially when it is clear. This is compounded when your clients are parents and their injured young son, as in a malpractice case I am currently handling. This medical negligence case involves a 4 year old boy who inexplicably went into a state of unconsciousness and was also showing multiple outward symptoms of seizure and other type of neurological deficits. The symptoms the boy was showing almost exactly parallel the symptoms all the medical literature states are the signs and symptoms of herpes encephalitis,a viral infection that attacks the brain by causing swelling and permanent neurological and brain injury and damage . The parents rushed their son to the local emergency room, however, despite these clear signs of a problem, the emergency room doctor, and his pediatrician who showed up, diagnosed the boy with an ear infection and sent him home about an hour after he arrived at the emergency room. Unfortunately, after being sent home, the child suffered intense seizures that caused irreversible and permanent brain injury. Upon readmission, the attending emergency room physician quickly identified the symptoms and took the appropriate medical action.

Recently, we deposed the emergency room physician and the pediatrician. Through almost an entire day of depositions of the doctors, the parents understandably had a hard time dealing with the blatant denial when the facts were so clear. This coupled with the fact that their son is permanently suffering neurological damage and the severe and life altering symptoms that come with such a brain injury. Many people, including injury lawyers, often do not realize the intensity required to effectively take a medical deposition when the witness is a doctor defendant. Most doctors are very intelligent and are good at responding evasively; long intense depositions are necessary to get as close to the truth as possible. During my first several years of dealing with medical malpractice cases I gained high respect for Missouri medical malpractice lawyers upon realizing the complexity and hard work required to successfully pursue medical malpractice cases.

The above case represents a Missouri medical malpractice case with true merit as there is legal liability for medical malpractice (someone was negligent) and there are damages (injury that causes economic loss and pain and suffering). We will pursue this case to trial and seek money damages to cover the minor child's reduced earning capability and future medical care; expected to be more than $5,000,000. As far as pain and suffering, that is capped by Missouri law at $350,000. This cap effectively eliminates Missouri medical malpractice cases unless their are significant injuries as the limitation of damages sometimes make the case economically unfeasible to pursue, as the one above. You have a lifetime of future care, lost wages, opportunity, or other economic damages pushing the case into the multi-million dollar medical malpractice case category.

Missouri Injury Lawyer Reference Source - Missouri Medical Malpractice Petition - Failure To Diagnose - Claim against Admitting Emergency Room Doctor, Consulting Pediatrician, and Hospital as the Employer

Posted by Benjamin J. Sansone | Permalink | Email This Post

Posted In: Our Injury Cases , Medical Malpractice

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Personal injury lawyers or trial lawyers, are one of the few if only groups that has an interest in protecting the rights of future victims of personal injury. Most people do not care deeply about tort reform or its consequences, because they are not victims or insurance companies. Until someone or their family member are seriously injured by the negligence of someone else, tort reform means nothing to most individuals, except a political talking point. The civil justice system is the only way the common individual can fight and sometimes win against multi- million dollar or multi-billion dollar corporations and insurance companies. So we have trial lawyers that fight for individuals and insurance companies that fight for tort reform, who do you think has your individual rights in mind?

For those of us that know tort reform is a major issue for the future of individual access to the justice system and to maintain that constitutional right to a trial by jury, below is a summary of the 2008 presidential candidate's positions on tort reform.

Current GOP front-runner - John McCain (R):

Directly from his website: "Pass tort reform to eliminate frivolous lawsuits and excessive damage awards. Provide a safe harbor for doctors that follow clinical guidelines and adhere to patient safety protocols." (Source: www.johnmccain.com)

Mitt Romney (R):

Strong believer in national tort reform, meaning the state's do not decide, but the federal government imposes damage caps, venue restrictions, evidentiary restrictions on individual access to the justice system, and taking away issues constitutionally required for juries to decide. (Source: www.mittromney.com) Claiming companies spend more on tort claims than on R&D; assuming this rhetoric was true, then those companies should spend more money on R&D to avoid the tort claims. Fact is, tort claims bring to light defective products or negligent actions and force industries to regulate themselves.

Fred Thompson (R):

Unfortunantly dropped out, and was the only Republican that was against tort reform and his voting record in the senate was consistent with that stance.

As for the Democrats, Neither Hilary Clinton (D) or Barack Obama (D) support tort reform as they realize it is simply not needed; our jury system and current evidentiary laws do an effective job of weeding out "frivolous" lawsuits.

Posted by Benjamin J. Sansone | Permalink | Email This Post

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