Missouri Injury Law Blog

In a Missouri car accident injury case I am currently handling. my client suffered a severe head injury. The defense appointed an expert and that expert attempted to opine about his belief of one witness' testimony regarding the facts of the case; specifically he opined he did not believe a witnesses account of how the head injury has affected the victim's life and believed they were not telling the truth. As an experienced Missouri personal injury lawyer, I am always looking down the road at what may come up at trial and how to prevent any potentially bad evidence from getting in front of a jury.

In Misssouri personal injury cases, lawyers cannot put on experts to testify, that in their opinion, another witness is telling the truth or not. Missouri case law is clear that, "expert testimony is inadmissible if it relates to the credibility of witnesses because it invades the province of the jury." State v. Link, 25 S.W.3d 136, 143 (Mo. banc 2000). It is the jury's charge and responsibility to decide issues of fact, which includes credibility of witnesses.

Additionally, non expert witnesses, lay witnesses, in a personal injury case, generally cannot testify about the truth or veracity of another witness. Missouri courts have long held that a witness should not give his or her opinion upon the truth of a statement by another witness. Stone v. City of Columbia, 885 S.W.2d 744, 746 (Mo.App.1994)

A good Missouri personal injury attorney knows that although it is not proper to present testimony that in one witness's opinion another witness is or is not telling the truth, a witness may testify to facts that may have the effect of discrediting the witness before the jury without invading the province of the jury. Stone, 885 S.W.2d at 747.

Additionally, witnesses may testify that a party has a reputation in the community, or within a group, of being untruthful. But may not testify that the personal is untruthful if that is simply based on a prior bad act or just that witness' personal opinion.

A person is qualified to testify as to another witness's reputation for truthfulness and veracity if it is shown that the person is familiar with "the general reputation of the witness in the neighborhood or among the people with whom the witness associates...." State v. Woods, 428 S.W.2d 521, 523 (Mo. 1968). Conversely, it is irrelevant what the person personally knows of the general conduct of the witness to be impeached because personal opinion as to a witness's truthfulness and veracity "is immaterial and not admissible." State v. Schell, 843 S.W.2d 382, 384 (Mo.App.E.D. 1992) (quoting State v. Huffman, 607 S.W.2d 702, 704 (Mo.App.E.D. 1980)).

Continue reading "Witnesses Generally Cannot Testify that they Believe another Witness is Telling the Truth " »

When an injured Missouri employee has been determined to be unable to return to work for a period of time, they are eligible for compensation through a benefit called TTD Benefits (Temporary Total Disability Benefits). See Missouri Workers' Compensation Law, Statute 287.250

This benefit pays employees a portion of their pay when they are temporarily unable to work. There are other compensation plans available for those with a permanent disability under Mo work comp.

A physician must certify that the employee is medically incapable of working for a length of time or able to return to work on a restricted basis. The first three days (the injury date and two days following) are considered a waiting period. Missouri Work Comp Statute 287.260.1. Therefore, the worker will not be paid for this time, unless they remain out of work for more than fourteen days. An employee is able to be reimbursed for two-thirds of their average weekly earnings. Missouri work comp laws have a maximum amount, or cap, that is allowed to be paid to the worker. Keep in mind that even though it is less than a normal paycheck amount, this compensation is tax free. Employees with work related injuries are allowed to receive TTD benefits for up to two years, unless it is a more permanent injury.

These benefits will be continued until such time that the employee returns to work, treatment has reached a maximum improvement level, or they are terminated for post injury misconduct. See Reporting Work Related Injuries and retaliatory termination. If a worker returns to work on a restricted basis and must perform duties which pay less than the full amount that they receive to perform their normal job duties, they are also eligible to receive TTD pay until they are able to return to their regular tasks. Brookman v. Henry Transp., 924 S.W.2d 286 (Mo. App. E.D. 1996).

Continue reading "TTD Pay under Missouri Work Comp - Compensation for Injured Workers Lost Wages" »

In some Missouri injury cases where the medical treatment necessitated was immediate, the issue of causation (i.e. injury caused by a car accident) is presumed under the Missouri Sudden Onset Rule. Under this Missouri personal injury rule, causation may be inferred by the jury without medical expert testimony. Tucker v. Wibbenmeyer, 901 S.W.2d 350 (Mo. Ct. App. 1995). Sudden onset rule applies when obvious symptoms of an injury follows immediately after an accident without delay or a very short delay. Examples of where the sudden onset rule can be used in lieu of medical testimony: a person involved in a Missouri truck accident who sustains a broken bone, head injury, or other immediate wound; or just about any injury that is sudden and does not take several days or weeks after the accident to develop or diagnose.

However, it is not wise to rely solely on the sudden onset rule. In many cases, even injuries that have a sudden onset require months of treatment. A good Missouri personal injury lawyer will not rely solely on the sudden onset rule when taking a Missouri truck accident case to trial. See St Louis Injury Lawyer Blog Article: Proving Medical Damages

I have never tried any injury case relying on the sudden onset rule for all my medical evidence. I have relied heavily on it in the past but always buttressed it with medical testimony from a treating doctor who testifies that the medical treatment was reasonable and necessary. Sometimes, in cases with less significant injuries, it makes economic sense to rely heavily on the sudden onset rule as medical testimony gets expensive. Here is a St Louis City car accident case that went to a jury and we got a good verdict on. I used the sudden onset rule in this case to substantiate cervical (neck) injuries after a St Louis City car accident resulting from a driver's failure to stop at a red light. However, my client in that case underwent months of physical therapy and even some pain injection shots. This medical treatment was substantiated by doctor testimony.

Continue reading "Proving Medical Damages in Missouri Personal Injury Cases: The Sudden Onset Rule" »

Any Missouri personal injury claim, whether it arises from a Missouri car or truck accident, from a dangerous product, or from just about any other cause a personal injury claim can be based on, the Plaintiff (the injured victim) must not only prove liability (legal requirement for the defendant and their insurance company to pay), but DAMAGES must be proven.

A mistake I learned early on in my career as a Missouri injury lawyer, after trying several St Louis personal injury jury trials, is that personal injury lawyers and their clients tend to focus on liability, proving the other person was at fault. Then cover damages and injuries to the victim relatively briefly as compared to the liability portion of the case. While using this approach I won all of my Missouri personal injury jury trials, however, I was disappointed in a few that the jury awarded my client less then what I expected (granted my expectation are always high).

The lesson I learned, when prosecuting a personal injury case, juries need to hear about damages, just as much, and even more in my opinion, than about liability. If the majority of your evidence is about why it is the other party's fault then that is mostly what the jury will think about. Personally, I believe a trial should be 60-80% about the damages to the victim. Cover liability and cover it well, but make damages the focus and theme of the trial.

A major category of damages are future medical expenses, problems, future disability, future surgery, etc ... In Missouri, proof of future damages in the form of personal injuries and symptoms must be established through a qualified expert, usually an MD. See Use of Experts by St Louis Injury Attorney

"Expert testimony is properly admissible if it 'will assist the trier of fact to understand the evidence or to determine a fact in issue.' The essential test of expert opinion evidence is whether it will be helpful to the fact finder." [Furthermore], "medical causation, which is not within the common knowledge or experience of a lay understanding, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and asserted cause." Landers, 963 S.W.2d at 279. Landers v. Chrysler Corp., 963 S.W.2d 275, 279 & 281 (Mo.App. E.D. 1997)

Also see, Missouri Statute 490.065 about expert testimony in personal injury case

In any civil action, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In Missouri injury claims one of the most important pieces of evidence your Missouri personal injury attorney must use is favorable testimony from a medical doctor about past and future medical care and the necessity and reasonableness of the treatment and charges.

Continue reading "Proving Medical Damages in a Missouri Personal Injury Case " »

When you sustain a work-related injury in Missouri it may be difficult determining your next step. Many employees assume that if is a minor injury there is no point in reporting it to their employer or the employee is afraid if they take any legal action they will lose their job. Unfortunately, we see a lot of these untreated, self-diagnosed, "minor" injuries become long term issues or the case not being worked up properly because the employee is afraid to hire a Missouri work comp lawyer fearing their job will be on the line.

For an employee injured at work, it is important to protect yourself through filing a Missouri work comp claim. It is also necessary to report the injury to your employer within 30 days of the incident. To do this you must provide the date, time, location and full details of how you were hurt to your employer. If you fail to report the work related injury, any future symptoms that arise may not be covered by Missouri work comp insurance. This leaves the injured employee responsible for any medical bills. Moreover, it is illegal for an employer to fire an employee for filing a work comp claim, this is called retaliatory termination.

A Missouri company must file an injury report after a work comp related injury, if they do not, a complaint can be filed with a division of the Department of Labor. Missouri companies that employ at least 5 individuals, full or part time, must carry Missouri worker's compensation insurance. Construction companies require only one employee. So they must not only allow you to file an injury report with them, they must also file that report with the Missouri Division of Workers Compensation. They have 30 days to do this.

After reporting the incident, it is also imperative that you receive medical treatment. Your employer will provide a doctor for you. However, during this time hiring a Missouri work comp attorney is necessary to guarantee all your rights under the Missouri work comp insurance system are asserted. Plus a Missouri work comp lawyer can file the work comp claim for you which gets the claim on file in the Missouri work comp courts. This allows intervention by the courts should there be any disagreements between you and your employer or the doctors they have sent you to. Intervention by the work comp courts fro any disputes, such as, disputes as to medical bills getting paid, necessary medical treatment being denied, and temporary disability pay you are entitled to if you cannot work.

More importantly, you may also have a 3rd party claim in addition to a work comp claim. See $500,000 Settlement - St Louis Work Comp Claim and 3rd Party Liability for Negligence

Continue reading "Reporting Work Related Injuries Under Missouri Work Comp" »

As a supplement to: the Known Risk Defense for Personal Injury Lawyers.

Just like a personal injury lawyer handling a St Louis car accident case would discuss the Missouri rules of the road and the defendant's violation of the rules of the road; when handling a St Louis medical malpractice case a good medical malpractice attorney must discuss the rules of surgery. Just like there are rules of the road that if followed properly will minimize or eliminate car and truck accidents; there are rules in surgery too, and if these rules are properly followed, medical mistakes should be minimized if not eliminated. But just like the reality on the highway, mistakes occur because health care providers do not always follow the rules, take shortcuts, make mistakes, and those short cuts, mistakes, or violations of the rules sometime result in otherwise avoidable personal injuries to other people.

The first rule taught to every surgeon is that they have to know what they are cutting before they cut it. #1 RULE OF SURGERY: NEVER cut into a body part unless you know what it is. Don't guess, Don't speculate, Don't cut first and hope for the best. If you don't know for certain then you don't cut.

So the "Known Risks" defense to Medical malpractice cases can easily be diffused in these situations because known risk or not, the complication or injury was caused by violating #1 rule of surgery when the doc cut something when they were not 100% sure what it was.

In gallbladder removal cases, cutting the common duct is a "known risk" because, in some circumstances, inexperienced or careless doctors commit medical negligence and cut the common bile duct without properly identifying the anatomy. See Critical View Of Safety for Personal Injury Lawyers Pursuing Negligent Gallbladder Operation Cases. Patient never consented to the doctor's medical negligence for failure to recognize the anatomy by improperly or not fully dissecting the gallbladder, ducts, and vessels.

The learning curve results in inexperienced or confused surgeons committing malpractice by negligently cutting the common bile duct, which means that these injuries have been reported, and are a "known risk" but just because these injuries have been reported in the medical literature and are a "known risk" does not mean that they were not caused by physician medical negligence.

In fact, because the above are "known risks" of the procedure, and these known risks or complications because have significant consequences for the patient as they result in serious injury or wrongful death from negligent operation; it reinforces the importance of identifying the patients anatomy with 100% certainty before cutting or clipping anything. Use interoperative cholangiogram to avoid gallbladder removal surgery medical malpractice.

As a St Louis Missouri medical malpractice lawyer, one of the most common defenses I hear is that the injury the patient suffered is a "known risk" or "complication" of the procedure, therefore, to cause the injury is not medically negligent. Complications are not always like side effects, which are unavoidable in certain situations and result without negligence. May times complications are unavoidable and not the result of negligence, however, just because a certain complication is a known risk of the procedure does not absolve the doctor of any negligence. Inattentive mistakes (medical negligence) is a "known risk" of surgery, inattentive mistakes are a known risk of just about anything we do, but they are still mistakes.

Lets take for example Gallbladder removal operations, the defense is often that injury to the common bile duct is a known risk of the procedure so its not negligence to cause the injury. So, does mistaking the common duct for the cystic duct and then cutting it not negligent? or putting and leaving clips on the common bile duct not negligent? Obviously that is negligence. Maybe a situation where the surgeon nicks the common duct and then realizes his error and corrects it appropriately, then I would agree, it is not negligent.

Malpractice defense lawyers love to argue that it is a known risk or complication, the doctor had no bad intent, and he was doing his best. Despite the fact the rules of surgery were broken. A known risk of most operations, or anytime you go under general anesthesia, is death. So if the surgeon is negligent and the patient dies is the health care provider absolved from any Missouri wrongful death action simply because death is a known risk of a procedure? Of course not, it is a known risk but may have been caused for avoidable or unavoidable reasons.

Lets put the "known risk" defense in context with something most of us do everyday, driving. Every time we drive anywhere it is a known risk that we may be in a car accident and suffer injury.

It is a "known risk" (complication) every time you drive through an intersection that someone may run a red light and hit you broadside.

It is a "known risk" (complication) that another driver could drift across the center line and cause a head on collision.

It is a "known risk" when you stop at a red light or stop sign an inattentive driver could run into the rear of your car. In fact this is a very well known risk as it is the most common type of motor vehicle accident.

We take on a "known risk" (complication) of possibly being in a car accident every time we drive.

So, since the above situations are "known risks" of driving does that mean the other driver that did not follow the rules of the road, was therefore negligent, and caused the car or truck accident resulting in personal injury should not be held accountable? because it is a known risk (i.e. complication) of driving? Of course not!

A personal injury lawyer must make these distinctions clear to a jury, as they, like most people, are not familiar with medical terms and rules, and when they hear "known risk" or "known complication" they are trying to be tricked into believing that is a get out of jail free card for the health care provider. Injury attorneys need to clearly explain the difference between known risks and unavoidable side effects. I like the analogy of the rules of the road above to dispel the know risks defense, then to further explain, unavoidable complications are like medicine side effects, if you take Aspirin, you may get stomach pain, not because someone was negligent, but it is an unavoidable complication or side effect that can occur.

Continue reading "Common Defenses Used in Missouri Medical Malpractice Cases - Putting the "Known Risk" Defense in Context " »

Guest Post:

Perhaps there are some lawyers who have put you off by being ambulance chasers, but not all personal injury lawyers are sharks waiting to prey on the wounded and injured. In fact, many of them have well established and reputable practices and are dedicated to ensuring that personal injury victims get what's due to them. If you or a loved one has been injured in an accident and suffered immensely, money may not be the first thing on your mind especially if lives have been lost. But life goes on, you will need money for medical expenses, and you're definitely entitled to compensation for mental anguish and physical pain, not to mention the loss of a quality life and having to deal with chronic pain and permanent disabilities. See St Louis Injury Lawyer Ben Sansone's Article - Do I need to Hire a Personal Injury Lawyer.

When you talk to a personal injury lawyer, you gain the following advantages:

• A free consultation that can help you decide if your case stands a chance in a court of law - you may have suffered only minor injuries, but the shock of the accident or the sheer negligence and willful recklessness of the perpetrator could be cited as reasons for nominal and punitive damages respectively. Your personal injury lawyer can advice of your options - whether to go in for a mediation with the other party or if you should take your case to court, and how much money you stand to gain based on the facts of the case.

• A personal injury lawyer could tell you if your case will be accepted as a personal injury - motor accidents, long-term negligence at work causing life-threatening and chronic diseases, safety violations in the work place or in public areas, and even mental and emotional abuse that leads to depression and other illnesses qualify as personal injury, and your lawyer is best placed to tell you if you have a case on your hands or not.

• You know what you need to preserve as evidence and the chances of destroying valuable evidence accidentally or negligently come down. In a personal injury case, it's also important to collect the testimony of witnesses - bystanders or other vehicle drivers must be interviewed in cases of motor accidents, your fellow employees will be questioned for work-place related cases, and so on. The sooner you talk to a lawyer, the more evidence you can collect, and the stronger your case.

• Most personal injury lawyers work on a contingency basis - they don't charge you a fee at the outset; instead, they retain a percentage of the damages awarded. If you lose the case, you may have to pay a nominal amount to cover the costs of your case. Talk to your lawyer and discuss the details at the outset, and get an agreement that is signed and sealed regarding payment and fees.

• Some lawyers may even advance you some money (this is unethical in for a Missouri Injury lawyer to do this personally, but they can refer you to case advance companies.) for medical expenses, but be careful before you take up such offers and do your homework and read the fine print before you take home this money or sign any document related to the same.

The sooner you consult with a personal injury lawyer, the better your chances are of winning your case in court or settling out of court with the other party on a sum that is beneficial to you. Also, there is a statute of limitations on personal injury cases, so the sooner you see a lawyer, the lower your chances are of running afoul of the statute and losing your chances of any compensation. So if you or a loved one has been injured in any way and you think you may have a personal injury case, call a lawyer now for a free consultation - choose your attorney based on their reputation, their experience, and the recommendations from satisfied clients.

This guest post is contributed by Chris Jacobson who writes on the topic of Criminal Justice Degrees . Chris can be reached at his email id: chris.jacobson7@gmail.com

In Missouri, a personal injury lawyer can file a wrongful death action on behalf of an unborn child, as under Missouri's wrongful death statutes and the court's interpretation of them, an unborn baby is a "person" capable of supporting a claim for wrongful death pursuant to § 537.080.

In Conner v Monkem Co, Inc., 898 S.W.2d 89 (Mo. 1995) , the Missouri Supreme court decided just that as the legislature never expressly defined this within the wrongful death statute to include or exclude unborn children. The court stated the following, keeping in mind many other states require the fetus to be "viable" to be able to assert a wrongful death claim.

As the question before us is one of statutory construction, we must be more sensitive to legislative direction and less sensitive to our own evaluation of policy considerations. Thus, the legislature's relatively clear expression in § 1.205 that parents and children have legally protectable interests in the life of a child from conception onward must be accorded greater weight than the many other and obvious difficulties associated with the type of claim here asserted.

Many people may agree or disagree with a Missouri wrongful death action brought by a "nonviable" fetus, which leads me to a more important point, especially for all you tort "reformers" out there, just because a case can be filed does not mean it will be successful.

Plaintiff's victory to this point, however, may be largely pyrrhic. While we hold that a wrongful death claim may be stated for a nonviable unborn child, plaintiff's ability to prove damages is certainly subject to question. Missouri has recognized that "[s]peculative results are not a proper element of damages." Wise v. Sands, 739 S.W.2d 731, 734 (Mo.App.1987). In Girdley v. Coats, 825 S.W.2d 295, 298 (Mo. banc 1992), we discussed the difficulty of establishing damages in a wrongful conception case. There, it was noted:

Who can divine, soon after birth, whether the child will be a financial boon or burden to the parents, what level of education will be required or what unique expenses could arise? These determinations are beyond the scope of probative proof.

Yes the wrongful death case can be filed, but can damages be proven? I think beyond financial burden or boon, the love, support, and absolute joy of a child is enough to prove damages to me, well beyond mere speculation.

Continue reading "Wrongful Death Laws in Missouri - Can a Claim be Made if a Pregnant Woman loses her Baby? " »

Medical mistakes and injuries in gallbladder removal operations that lead to Missouri medical malpractice case, can often be avoided by knowing the anatomy. See St Louis Injury Lawyer Article about Lap-Cholis and the Anatomy

One of the methods for properly identifying the anatomy is call the "Critical View of Safety" or CVS for short. Using the CVS technique, Calot's triangle is completely unfolded by mobilizing the gallbladder neck from the gallbladder bed of the liver before transecting the cystic artery and duct. Thus proper identification of the anatomy and fewer instances of surgical medical malpractice related to laparoscopic gallbladder removal.

The figure to the right is a depiction of the critical view of safety. Circumferential dissection, visualization of the anatomy via the triangle of calot, and using the CVS technique; a surgeon can obtain confident identification of the anatomy, and use of an intraoperative cholangiogram if there is any doubt by the surgeon. See St Louis Injury Lawyer Article about Knowing the Indications for an Intraoperative Cholangiogram. The CVS approach eliminates complications from negligent identification of the anatomy, as the improper or just lack of anatomical identification leads to cutting and or clipping of the wrong ducts or vessels.

The operative video below is a must watch for any personal injury lawyer trying to understand the critical view of safety. The video was done to show the anatomy of gall bladder region, the safe zone, dangerous zone, and the critical view of safety.

Even if the gallbladder is highly inflamed (often a major reason to remove the gallbladder in the first place), the CVS technique still works:

[I]n cases of badly inflamed gallbladders, it is often hard to achieve a critical view of safety, because Calot's triangle is often solid and cannot be expanded. In our standardized procedure, which is based on exposing the inner layer of the subserosal layer (the ss-i layer), the critical view of safety can be safely achieved. We have safely performed LC, using our standardized procedure, for many cases with cholecystitis with highly inflamed gallbladders

Quote from: The critical view of safety in laparoscopic cholecystectomy is optimized by exposing the inner layer of the subserosal layer

Continue reading "Understanding the Critical View of Safety "CVS" for use by Injury Lawyers in Missouri Medical Malpractice Cases " »

St Louis Post Dispatch: Study says state medical boards don't punish dangerous doctors:

Last year, our investigation of the health care system portrayed the agency that regulates Missouri doctors as one of the nation's weakest.

As a practicing St Louis area Missouri medical malpractice attorney, I can tell you from experience that the reporting of serious complications and doctor mistakes rarely happens. Most of it is either not reported at all or hid within the hospital's risk management office behind the "peer review" shield. Which is in place because doctors and hospitals claim if reporting of complications were public that would discourage the actual reporting of it - BUT IT IS NOT BEING REPORTED ANYWAY! On average 8 per year are reported!

An analysis by the Post-Dispatch showed that from 2004 through 2008, Missouri's 140 hospitals reported 41 actions against 32 doctors - or a little more than eight a year.

One such St Louis medical negligence lawsuit I handled involved a doctor that I cannot name, but by the time we were done with the case had uncovered multiple deaths and dozens of serious complications caused by outright neglect and gross negligence. This doctor was never reported to the Missouri board of healing arts until after our case and it took us years to get the records of all his problems through court action and from the hospital he practiced at. Thankfully, that doctor's surgical privileges have been suspended indefinitely. That St Louis wrongful death case settled for 4.5 Million dollars.

Post Dispatch article also stated:

As long ago as 1996, a government agency concluded that the number of hospital reports was "unreasonably low." It has gotten even lower. In 2008, the number of reports was three-fourths of the 1996 total, according to the newspaper's analysis.

Under reporting of Missouri medical mistakes allows bad doctors to go unchecked, but sooner or later they make a mistake that cannot be hidden, but by that time it is too late, it already cost someone their life, just like what happened in this St Louis wrongful death case settled by injury attorney Ben Sansone.