Missouri Injury Law Blog

Working for a cyclist and a personal injury attorney I have become well aware of the dangers of bicycling on the roadways and the risk of being injured by inattentive drivers. See St Louis Bike Accident Lawyer Article, discussing common causes of bike accidents.

People toss around the phrase "this is my right" so heedlessly, that they not only forget what it actually means to have a right, but in doing so they have managed to squander the very conviction of the word. Furthermore, it appears that a strong belief in one's right primarily manifests itself when filing a personal injury lawsuit. At that time, everyone clamors about to prove their rights have been violated in some way which, in turn, caused injuries and pain and suffering so severe that it can only be healed with a Band-Aid generally made of dollar bills. Indeed, compensation may be, and typically is, the correct solution. However, having a clear understanding of one's rights is crucial to any motorist wishing to have a better chance of survival on the roads - I believe more specifically applicable to cyclists - as well as a better chance of winning your bicycle accident case.

I've been reading a great book on the legalities of bicycling, aptly named Bicycling & The Law, by Bob Mionske, J.D. In fact, Mr. Mionske summarizes this thought completely in a chapter wholly dedicated to the rights and duties of the cyclist. He states, "...duties are the flip side of rights; with rights come duties", and "your right to the road is not absolute, nor is theirs - you owe a corresponding duty to every other person not to infringe upon their right to the road, just as every person owes you the same duty."

You should know exactly what your rights and duties as a fellow driver are. You have a duty of care. This is to say that you, as a cyclist, will not impose an unreasonable risk of harm onto another person/driver. You have the duty to allow other drivers to conceivably assume that you will obey all traffic laws and not intentionally put them at risk of injury; just as you have the right to assume the same from those same drivers. As a part of this right, if another driver violates this duty of care, you may hold them liable by filing a bike injury lawsuit.

As stated in a previous blog, another principal of cycling is to know your state's laws. You can easily find Missouri's bicycle laws (http://mobikefed.org/statutes) on the web. This is only a general overview, but it is important to hire an experienced attorney when discussing specific issues such as: assumption of risk; following too closely; proper stops; intersection crashes; and bike crashes involving suspected DWI offenders, just to name a few.

As a St Louis injury lawyer handling St Louis medical malpractice lawsuits, I see the continued attack on the legal profession and my injured clients from people and organizations with the knee jerk reaction of claiming medical negligence cases are somehow inherently wrong and that juries and the legal system routinely overcompensate claimants. However, the statistics show this is an urban myth, likely believed by many people because of political affiliations or as the result of a very effective and concerted effort by the malpractice insurance companies to put these falsehoods out there.

According to a Medical Malpractice study by Harvard University and Published in the New England Journal of Medicine, the "frivolous lawsuit" argument is overblown:

"The researchers analyzed past malpractice claims to judge the volume of meritless lawsuits and determine their outcomes. Their findings suggest that portraits of a malpractice system riddled with frivolous lawsuits are overblown. Although nearly one third of claims lacked clear-cut evidence of medical error, most of these suits did not receive compensation. In fact, the number of meritorious claims that did not get paid was actually larger than the group of meritless claims that were paid. "

The Harvard research team sampled 31,000 medical records and found that one out of every 25 patients was injured by doctors. Of those injured, only 4 percent filed lawsuits. In another study conducted by Harvard School of Public Health and two other foundations, they found that of 1,452 medical malpractice lawsuits filed, 90 percent did show medical injury. A quarter of these claims were fatalities. Only six cases resulted in what could be called a "frivolous lawsuit"; meaning that compensation was paid, but no injury was identified.

A much bigger issue than "frivolous lawsuits" was that 236 malpractice cases were dismissed by the court despite proof of doctor error and some injury to the patient. Only 1,050 of the 1,452 cases were determined to have been decided correctly.

As we see by this small summary of a very lengthy study, healthcare issues of insurance rates, costs, and the myth of "defensive medicine" cannot be contributed to medical malpractice lawsuits. Many different hospitals and health centers are reworking their procedures to ensure better treatment, thereby decreasing mistakes, injuries, and ultimately lawsuits.

An example of this is the University of Michigan Medical System. Their restructuring of their procedures have resulted in half the number of lawsuits filed against their facilities and physicians. A policy of admitting fault and owning up to their mistakes rather than hiding mistakes from patients.

An important issue in a St Louis car accident injury claim, or any personal injury claim, is causation and proof of damages through medical testimony. The legal and medical professions both play major roles in a car accident lawsuit. You need a good personal injury attorney and you need a doctor that is willing to back you up and testify on your behalf. See previous article by St Louis injury lawyer Ben Sansone: Proving Medical Damages in a Missouri Personal Injury Case and The Sudden Onset Rule in Missouri Auto Accident Claims.

The plaintiff (injured party bringing the case) has the burden of proof, meaning they must prove their case before a jury can find in their favor. So the plaintiff's car accident lawyer will put on evidence that the accident was the defendant's fault and then medical evidence, through doctor testimony, that the Plaintiff is injured from the accident, current state of their injuries, and likely future problems.

Oftentimes, Defense counsel for the insurance company will send the Plaintiff for an IME (Independent Medical Examination) especially when there were pre-exisitng and related injuries or the defense disputes causation.

But what if the defense does not do an IME and does not call any doctor to dispute causation, yet the lawyer argues causation at trial to the jury? As a St Louis personal injury lawyer, I have run into this situation a few times and I argue to the jury to draw an adverse inference from their failure to bring evidence to the trial but still argue that defense.

This argument to the jury about the failure to bring in a doctor to support their causation defense is supported by Missouri case law. In Hemann v Camolaur, Inc., 127 S.W.3d 706 (Mo Ct. App WD 2004), the Plaintiff's injury attorney argued to the jury in closing argument that the defense failed to call a doctor or provide any evidence to support their defense of causation. However, this is a fine line that needs to be walked by a personal injury trial attorney; if the argument jumps from pointing out the lack of evidence to telling the jury to actually draw an adverse inference from the lack of evidence, a court could determine that the argument went too far and was too prejudicial.

The above argument and many others need to be made at an injury trial and the extent you go with each argument depends on the facts of the case and the particular judge that you are in front of. To what extent a lawyer can make many of these trial arguments depends on the judge as the extent a lawyer can make certain arguments or pursue a certain line of questioning oftentimes lies within the discretion of the trial judge. For example, as discussed above, make an adverse inference argument about failure to call certain witnesses without actually asking the jury to draw an adverse inference.

Continue reading "Personal Injury Trials: Proving Damages and Arguments to the Jury About Medical Testimony or Lack Thereof " »

As a St Louis injury lawyer, I believe it is important to clarify, with my personal injury clients, the rights Medicare may have against their injury claim. A crucial issue when settling a personal injury case, that many people may not realize, is payback to Medicare or the requirement of Medicare Set Aside if the injured client is a medicare recipient or is expected to receive medicare benefits in the near future. Medicare demands a set aside of money to cover future medical costs medicare may have to payout in the future as a result of the injury caused by a negligent party.

The extent Medicare can recover or demand a set aside is often litigated. For example, a recent decision clarified Medicare has no recovery rights in Missouri wrongful death claims. St Louis Injury Lawyer Blog re: Medicare Recovery of Wrongful Death Benefits, discussing the Bradley v Sebelius case.

Another recent decision was fought by personal injury attorneys against medicare and the decision has affects for my injury clients in St Louis and across Missouri and Illinois. The court in Haro v. Sebelius determined Medicare was overreaching and found no statutory authority to support a direct action against a personal injury victim's attorney, except to the extent they are recipients of settlement proceeds. The court acknowledged the obvious: Medicare is putting personal injury lawyers in a quandary with their clients that is not supported by the statute. Thus medicare cannot hold settlements hostage by requiring personal injury attorneys to either turn the settlement money over to Medicare or hold the settlement money in trust while the lien is being disputed.

Now it appears the contractors that handle the Medicare recovery of injury awards have suspended issuing rights and responsibly letters and demand letters for payment. MAybe while they try to go through congress to get around the Haro decision. This causes problems for injury lawyers as we cannot issue our client's funds before Medicare liability is determined. In fact, in most cases the insurance company for the negligent party (ie. driver that causes a car accident) refuse to issue settlement checks without written confirmation from the Medicate contractor about their lien.

Currently, I am handling a St Louis nursing home injury case, the nursing home is ready to settle, however, Medicare has not informed me of what they are claiming is the Medicare lien against any recovery. The nursing home's insurance company is not going to issue the settlement check because they could be liable if the liens are not satisfied. The problem is, it take several months for Medicare to tell you what their lien is! Thus holding hostage the settlement for any client that is a medicare recipient, mainly the elderly.

Continue reading "Medicare recovery against Personal Injury Awards - Injury cases Held Hostage by Medicare" »

When involved in a bicycle accident St Louis injury lawyer Ben Sansone has a few pointers to follow to ensure that you are covered should you need to pursue a personal injury lawsuit. See Also, St Louis Injury Law Article: Common Causes of Bike Accidents.

First, you must know the Missouri bicycle statutes. As a cyclist, it is important to follow the laws set in place just as motorist should. There are a lot of activist groups working to place stricter laws on motorists, more lenient laws on cyclists, and road compensations to benefit bikers. However grand the motivations are, we all know you cannot regulate or legalize common sense into people. Sometimes motorists and cyclist alike just don't pay attention for a split second and an accident occurs. If planning on riding a bike on a main road, having knowledge of what you can and cannot do on a bicycle should be a necessity before even purchasing a bike for that purpose.

Even spandex clad, serious bikers have a place to carry their identification and medical insurance cards. If you are involved in a crash, it is smart to have this information readily available to exchange with the police, other driver, or medical provider - should you be injured.

As with a motor vehicle crashes, do not discuss the whys and wherefores of the accident with anyone other than the police. Do not admit blame or blame the other driver. Contact a personal injury bike accident attorney. We have a lot of clients that call us to handle their cases after trying to negotiate with the responsible party's insurance company themselves. More times than not, statements made by the injured client, however flippantly made, are used by the insurance company against the cyclist to deny payment. In the same sense though, any statements made by the negligent driver can be used to benefit your claim.

Try to get names and contact information of any witnesses, as these may be needed during your lawsuit if a question of responsibility arises - which it undoubtedly will.
Follow up with a medical provider. Even if you are not in need of immediate ambulance transportation, go to the ER or your primary care doctor for a follow up visit. You may not feel the full effect of the crash until 24 to 48 hours after the accident. It is important to determine if there has been any internal damage done that will become problematic later.

Continue reading "Common Causes of Bike Accidents and Tips from a St Louis Injury Lawyer of What to do After a Bike Accident" »

A Missouri workers compensation lawyer filed a subpoena on behalf of his client, the injured worker, to get the video tape of the injury his client sustained. Presumably to rebut the typical defense allegation that the injured employee is faking. Not surprisingly, the defense tried to prevent the production of the surveillance video, because the video would show the employee was legitimately injured and take away their bogus defense.

At the trial level, the Missouri work comp judge ruled "[i]t is clear in [Section 287.215] that videotapes, motion pictures or visual reproductions of an image of an employee are not discoverable by employee." Thus preventing the injured employee's attorney from obtaining the video of the injury. The case was appealed and the circuit level agreed that the video should be turned over as it is a statement as defined by the discovery rules and there was substantial need, and thus discoverable. The case was appealed to the appellate court where not only was the circuit courts ruling upheld, but the appellate court ruled that the substantial need portion was not required, the video is a statement and thus is discoverable, even without substantial need.

"We need not consider whether Feltz demonstrated a "substantial need" or "undue hardship" because such proof was unnecessary to obtain production of the surveillance video pursuant to Rule 56.01(b)(3).3 In McConaha, the Supreme Court expressly held that Rule 56.01(b)(3), applied through Section 287.560, permits the discovery of surveillance videotapes as a "statement" without the need of a showing of undue hardship. 979 S.W.2d at 189-90."

Full Workers Compensation Opinion - Feltz v. Ford, WD Missouri 5.2011

Continue reading "Surveillance Video Discoverable in Missouri Workers Compensation Claims " »