Missouri Injury Law Blog

In Missouri and throughout the county ERISA Liens are becoming more complicated and more common in car accident and other personal injury settlements. Essentially, if you are injured in a car accident or have an other actionable personal injury claim, and your health plan is an employer funded health plan and qualified under ERISA, the plan can sometimes circumvent State anti-subrogation laws. For more on health insurer subrogation, see: Personal Injury Settlement in Missouri: Can Your Health Insurer Demand Payback for Medical Expenses?

What does this mean to a personal injury victim in Missouri? When your auto accident or other injury claim settles your injury lawyer needs to make sure: (1) if any qualified ERISA plan has a valid lien, and if so, (2) to minimize that lien to maximize your recovery.

Important issues an injury attorney must investigate before resolving a claimed ERISA Lien include making sure the ERISA Plan's contractual language actually even create a lien against the personal injury settlement; the current state of law regarding ERISA Plans and what it is in your jurisdiction; equitable defenses, including the make whole doctrine and the pro rate sharing of losses. For a detailed analysis of the effect ERISA plans have on personal injury cases and eight ways to deal with them see Eight Ways to Defeat or Minimize ERISA Claims, by Roger Barron. Eight-Ways-Article - ERISA PLANS.pdf

See: Dont Lien On Me.pdf - For detailed information on liens and personal injury settlements and judgments.

Continue reading "Dealing with ERISA Liens When Settling Personal Injury Cases" »

A Missouri personal injury lawyer must prove liability and damages to succeed in a personal injury claim. Liability is whether or not the negligent driver violated a duty, i.e. drove too fast, failed to keep a lookout, or violated various other rules of the road. That violation must be the cause of the damages to the victim. In most cases, causation is obvious and easily proven, but it sometimes can be a difficult issue.

With regards to Missouri Automobile Negligence, it is necessary to prove "causation" or that the negligent party is the "actual cause" of the accident and injuries sustained. To do this, it must be shown that there would be no injuries but for the negligent party's action. If it is possible to take that action out of the scenario and the result is still the same, it is incorrect to say that there is actual causation.

Another aspect of causation is that the Missouri auto accident injury must be the "proximate cause" of the negligent driver, meaning the injuries sustained were a foreseeable consequence of the negligent party's action. Peoples v. Conway, 897 S.W.2d 206 (Mo.app.1995). Meaning: did the act cause a succession of injuries other than the initial one. Are the subsequent injuries the "natural and probable" outcome of the original negligent act? The difficulty in proving proximate causation is to know where the stopping point is. Finding the fair and reasonable degree of separation can become a gray area. See Wilkerson v. Williams, 141 S.W.3d 530 (Mo. Ct. App. S.D. 2004). Luallen v. Reid, 58 S.W.3d 50 (Mo.App.2001) shows that negligence need only be a contributor to the injuries sustained, not the sole cause. To establish proximate causation, it is "sufficient that it be one of the efficient causes thereof, without which the injury would not have resulted."

Continue reading "Proving Causation in Missouri Car Accident Claims and Lawsuits" »

As a personal injury lawyer, one of the most common injuries I see are back injuries; some of the more severe include disc bulges and herniated discs. Disc injuries are most commonly found in the low back and neck. As a Missouri work comp attorney, I often see clients who need a lumbar laminectomy, especially for injured workers who do a lot of heavy lifting. If the laminectomy or a discectomy is not successful, a spinal fusion surgery may be necessary. See Missouri work comp injury articleSpinal Fusion after St Louis Construction Site Injury.

What is the difference between a disc bulge and herniation?

A disc bulge is when the disc moves or bulges outside of the normal space between the vertebrae that it normally occupies. Disc bulges often push on nerves and cause pain and discomfort. Generally, disc bulges are treated with physical therapy and spinal pain injections, also referred to as steroid injections. See Missouri Personal Injury Lawyer Article: Spinal Injection and Medical Malpractice.

A herniated disc is when there is a break in the outer layer of the disc which causes the disc to become deformed and leak the internal fluid. In addition to the physical effect on the injured victim's back alignment, this leaking fluid can damage the spinal cord or nerves resulting in more pain. Herniated discs can be caused by a traumatic injury such as a car or truck accident, motorcycle accident, or work related injuries.

Most of my clients who have back injuries do so as the result of a Missouri car accident caused by a negligent driver. After a car accident occurs, typically people will visit the emergency room. However, back injuries such as disc bulges or disc heriations are commonly not treated at the ER other than receiving a prescription for pain and muscle relaxers. It is important to follow up with a doctor and have back injuries treated. Back pain may be an aching muscle, but it may be a more serious injury that needs to be treated.

Continue reading "Common Back Injuries from Car Accidents and Work Related Injury " »

Recently, an Illinois House committee voted to abolish the Illinois workers compensation system. Could this proposed bill become pass and become law and what would that mean for injured workers in Illinois?

Anything is possible, but I doubt Illinois work comp will be abolished. If it were, it would mean big changes to how work related injuries are handled and how workers are compensated. Under the current Illinois work comp laws, fault for the injury is generally irrelevant, as long as the injury is work related, the injured worker is entitled to work comp benefits. If Workers' Compensation was completely dismantled, injured workers would be forced to go through the civil courts and would likely be required to prove negligence or fault by another party to be successful. Additionally, that process is much slower and immediate benefits would not likely be available to the injured employee.

On the other hand, money awards would not be limited by the current work comp regulations which limit the value of injuries brought under work comp and dictate compensation and prevent the injured worker from filing a lawsuit against their employer for any negligence. Instead damages would be left to a jury and evidence of medical bills, injuries, and symptoms would be submitted to a jury just like in a personal injury case. This would likely lead to larger damage awards to injured workers than what they currently receive under the work comp system.

Proposed Senate Bill 1933, Illinois Work Comp Repealed

St Louis Post Dispatch article about Work Comp in Illinois

Continue reading "Injured at Work? Illinois Work Comp System Under Attack" »

In premise liability ("slip and fall" cases), oftentimes the issue of "subsequent remedial remedies" comes up. Meaning, repairs or improvements made to the premises after the injury occurs. See Missouri Injury Lawyer Article: Evidentiary Issues in Slip and Fall Cases Under Missouri injury law, it is oftentimes difficult to get subsequent remedial measures into evidence in slip and fall cases. However, in Missouri product liability personal injury cases, it is much easier to get subsequent remedial measures into evidence. For example, was the product flaw corrected and do the subsequent models sold have that correction? Those corrections or modifications can be used as evidence at trial in product liability cases in Missouri.

Missouri law allows evidence of subsequent remedial measures in Missouri strict liability lawsuits, and the courts have stated:

"[T]hat in strict liability cases, post remedial measures may be relevant. In strict liability cases, fault prior to the accident is not material. Instead, the question is whether or not there was a defect in the product when the plaintiff was injured. Subsequent repairs can be probative of this fact." See Pollard v. Ashby, 793 S.W.2d 394, 403 (Mo. App. E.D. 1990).

The Federal Rules of Evidence are not as favorable as the Missouri rule on this point, however, for proper purposes this evidence can be introduced in Federal cases as well. Federal Rule of Evidence 407 states that subsequent remedial measures are admissible for "proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment."

Continue reading "Using Evidence of Subsequent Repairs or Remedial Measures in Missouri Product Liability Cases" »

St Louis pharmacy and nurse malpractice case settles for $100,000.00. My client suffered injury to his eye, specifically his cornea, as a direct and proximate result of the improper dosage instructions given by Walgreens. Soon after retaining Missouri pharmacy malpractice lawyer, Ben Sansone; it was discovered that the injured client called Walgreens with continued complaints, which were clearly documented by the medical records, yet he was instructed to keep taking the same improper dosage of 1 drop per day. This improperly treated the eye infection which lead to injury to the eye, an injury that would have been avoided had the dosage been properly given.

The key to most Missouri injury cases related to health care malpractice, including pharmacist malpractice, is that you need a doctor to testify regarding causation and negligence. See: Proving Medical Damages in Missouri Injury Cases. Both of the victim's local St Louis Missouri treating eye doctors agreed that the corneal scar/hole was a direct result of the improper dosage that failed to clear up an eye infection. Moreover, they agreed that the injury victim had permanent vision problems that cannot be completely corrected. The vision problems include, wearing glasses only for vision correction (no contacts).

As experienced Missouri accident lawyers, we were able to gather the evidence required to settle this case quickly and before filing a lawsuit. Our client was extremely happy with the result of the case.

Personal Injury Client review:

"Mr. Sansone is a professional lawyer that will keep you abreast of every twist and turn. I have retained other attorneys over the years and Mr. Sansone ranks at the top." - Terry Watson.

Continue reading "Negligent Prescription Filling and Instructions - Missouri Pharmacy Malpractice " »

Recently our St Louis injury law firm, Sansone / Lauber, was retained by a young woman who was the victim of St Louis pharmacist malpractice after receiving the wrong prescription at a local St Louis pharmacy. Our injured client took daily medication for prevention of severe migraines, that medication was negligently refilled with estrogen, which caused serious side effects, including even more severe headaches, a hospital stay, and ongoing medical issues.

The pharmacist was negligent in his duty of care to our client and therefore liable to compensate for the resulting medical damages. Clearly, a pharmacist is responsible for filling the correct medication, that is the main purpose of their job. Missouri State Statute 195.060.1, is very clear on what information is required to be documented on the prescription label. Not only are pharmacies required to have the patients basic vitals, such as: name, address, etc., but also the drug name, strength, dosage directions, among other information.

Currently, Walgreens is involved in a multi-million dollar wrongful death lawsuit for failing to follow these clear directives. A 46 year old man died 36 hours after receiving his prescription, his family's wrongful death attorneys quickly spotted that the dosing instructions were negligently marked on the bottle. As a result, the man accidentally took too much medication which lead to his death.

Missouri medical malpractice cases involving medication errors are more frequent than we hear about. It is mainly because pharmacies, such as Walgreens, Rite Aid, and CVS, are quick to settle these claims to protect their reputations, and quite frankly, these cases speak for themselves. In most Missouri pharmaceutical error cases, it is easy to point the finger directly to the cause of the injury or death. An experienced Missouri Medical Malpractice attorney knows the laws surrounding pharmacy protocols, and can therefore help prove the causation link between prescription error and personal injuries

Missouri employers are required to have Workers' Compensation insurance. A portion of the insurance payments made by the employers go into the Missouri Second Injury Fund or SIF. This fund, though in some financial trouble, currently provides monetary benefits to employees who have sustained injuries in specific circumstances. As all Missouri employers with work comp insurance pay into this collective "pot", to file a claim for benefits from this fund you must specifically file a claim against the Missouri second injury fund, which is represented by the Missouri Attorney General's Office.

Missouri statutes require an injured employee to file a Work Comp claim claim against the Missouri SIF within one year of filing a claim against your employer/insurer or within two years after the work related injury occurred. This benefit is restricted and follows strict guidelines on who is eligible to receive them. Uninsured employers, disability, death, second job loss or wage loss, and rehabilitation benefits are available in the SIF.

If an employer chose not to have workers' comp insurance at the time an employee suffers personal injury or is killed, the SIF may help pay for the medical expenses accrued by the injured employee or death benefits to their family. However, the company will still be liable to pay some of the expenses when the SIF seeks reimbursement. When an employee has a prior disability which is exacerbated by a work related injury, causing them to have a permanent partial or permanent total disability, the SIF can see that the employee is compensated.

During this time of economic woes, a lot of people are required to work two or even three different jobs. If you are injured on one of these jobs and it directly affects the other(s) causing you to miss work, and pay, the SIF may provide benefits to compensate for this. This is the most difficult claim, full of specific technicalities.

On the assumption that lawmakers get their act together and secure the SIF, you need a Missouri Workers' Compensation lawyer that is experienced in these types of claims and their specific regulations.

Article authored by Sansone / Lauber staff paralegal, Erin Mace.

As an injured employee, you have probably never dealt with the work comp system, do not let the work comp insurance company and their representatives take advantage of you, you need an experienced Missouri workers compensation attorney who will be able to ensure you get the necessary medical treatment, off work benefits or "TTD" Pay (See - Injury Law Blog regarding TTD Pay and Missouri Worker's Benefits), and compensation for your injuries.

In order to have access to the work comp courts to protect your rights, it is very important to file a formal claim for Missouri Workers Compensation early on after your injury. See Missouri Personal Injury Article: Reporting a Work Related Injury in Missouri Once a formal claim has been filed you have access to the work comp division for any redress for disputes with the employer's work comp insurance regarding medical treatment, TTD pay, return to work, or any other disputes that may arise.

As a Missouri work comp lawyer, a question I receive frequently is, "why can't I choose my own doctor?" Missouri Worker's Compensation Law, Missouri Statute 287.140.1 states that the Missouri employer is required to provide "medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines" as may be reasonably required by the Missouri employee who suffered personal injury while on the job. Missouri work comp statute 287.140 goes on to say that the Missouri work comp insurance must pay for this treatment, deductibles, reasonable traveling expenses (up to 250 miles each way), and ongoing medical examinations.

If you are not satisfied with your treatment and have a need or desire to go to another provider, you are obligated to pay all costs, Missouri Statute 287.140.13. It is imperative that you call an experienced St Louis Missouri Work Comp lawyer to see if your employer will agree to refer you to another physician. In event that they refuse to agree to this referral, you have the option, after a work comp claim has been filed with the Missouri Board of Industrial Relations, to schedule a hearing before an administrative judge to discuss your options. Or you and your attorney can find a physician's office that will allow you to receive the medical treatment that you need on a lien basis.

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