Missouri Injury Law Blog

Missouri is just one of many states working hard to correct problems associated with allowing bad medical doctors to continue "practicing" medicine. (See Post Dispatch Article: Missouri Law Targets Incompetent Doctors) Governor Jay Nixon signed House Bill 265, which allows the healing arts board the ability to act more quickly in response to medical malpractice and other complaints against physicians believed to be "a threat to public health". It also provides better transparency between doctors and patients.

This new law will allow open access to doctor's background information such as: complaints filed, suspensions, education, specialty certifications, and all disciplinary records. The law will also afford swifter action against Missouri doctors suspected of substance abuse and mental illness. Prior procedures dictated that any complaint of this kind would first be heard by the state administrative hearing commission - a process that could take up to several years before happening - then another hearing would be held by the healing arts board. If the board decided it was a plausible complaint, the incompetent doctor would be ordered to complete competency and drug testing before being disciplined. The new law passes over the administrative hearing and gives more power to the healing arts board to take quick action.

"Transparency" seems to be the new political ambition at all levels of government, lets see if the law actually has teeth when applied to the real world. In dealing with doctor transparency, they may be right - though, the better terminology would be accountability. The ultimate form of accountability is the patient's right under the 7th Amendment - right to a jury trial; which is being eroded away in this country under the guise of "tort reform", a topic for an entirely new and very long conversation.

The new law goes into affect August 28, 2011.

Helmets First gives away bicycle helmets to St Louis area children. They are holding their first fundraising ride on Labor Day. www.HelmetHustle.com

Helmets First!
6133 Delmar Blvd
St Louis, MO, 63112
(877) 506-1570
(618) 281-8393 FAX
www.helmetsfirst.com

This is a worthy cause to help encourage and promote bike helmet use by children. The most common injury related to bike accidents is head and brain injury. Unfortunalty, head injuries occur even with the use of helmets, however, the use of a helmet greatly reduces the severity of most head injuries. Instead of being a life debilitating injury, use of helmets often limits the head injury to symptoms of headaches and other minor symptoms which usually go away after a few weeks.

As St Louis personal injury attorneys, we see and handle a lot of cases involving traumatic brain injury (TBI). A competent brain injury lawyer will actively follow new bills that are introduced pertaining to insurance regulations which, in turn, greatly affect our injured clients with head injuries.

Recently Fox news published an article on the injustices surrounding traumatic brain injury cases. Brain Injury Patients Face Double Injustice -- Trauma and Mounting Bills Not only do patients suffer physical injury, but they must also deal with the surmounting medical bills that medical insurance will not pay. Example, Corey Beattie, 18 years old, was involved in a truck accident when she was the passenger in a vehicle hit by a truck. It took two hours for rescue workers to remove her from the mangled car. She had a broken neck and multiple fractures. The doctors said that her brain "spun within the frame of her skull". Corey's mother was informed that she would need at least one year of consecutive inpatient rehabilitation. But like so many others, her insurance would only cover 6 ½ months of rehab. She was released and sent to outpatient therapy. Research suggests that with a severe brain injury such as this, the brain needs this 12 month window to have the best chance of rehabilitation and regeneration. The brain surgeon was overruled by bureaucracy.

Insurance companies are notorious for refusing to pay the ongoing treatment needed to complete rehabilitation in TBI and other serious medical cases. A New Jersey representative is advocating that congress step in to correct this issue. His proposal is to have the Department of Health and Human Services make treatment of TBI a benefit under the Patient Protection and Affordable Care Act. He is suggesting that the government will be able to better determine the guidelines for what will and will not be paid with the intention that patients can get the ongoing care that they need. Whether or not this is the best solution, something needs to be done to fix this problem.

St Louis injury lawyer, Ben Sansone, has handled multiple severe brain injury cases to successful conclusions. Including just a few mentioned below:

$575,000.00 drunk driving car accident and brain Injury Settlement. Client was a passenger in the back of a vehicle struck by a truck driven by a drunk driver in Illinois.

A young boy that was struck in the head by a loose commercial door post while at school. The evidence shows that the school faculty were aware of the defective post the day prior but failed to repair or warn o the condition. This particular case is still pending, but we believe it is just a matter of time before the case settles favorably.

Head Injury from St Louis Auto accident. Minor physical injuries but client suffered post concussion syndrome (PCS) a minor form of head injury.

$500,000 settlement for St Louis construction worker struck on head with board and suffered a head injury.

Continue reading "Potential New Insurance Regulations related to Traumatic Brain Injury (TBI) " »

Under Missouri personal injury law, government and public entities are immune from certain causes of action, however, if a dangerous condition exists on the property then the government or public entity is liable. See St Louis Premise Liability Lawyer Article: "Missouri Premise Liability Cases Against Government Entities - i.e. park, zoo, injuries at public school, etc ..."

Even when they are liable, Missouri law affords a limit on the amount an injured person can recover from these entities, basically, $300,000 per injured person, adjusted for inflation. See Missouri Statute 537.610(2), stating:

The liability of the state and its public entities on claims within the scope of sections 537.600 to 537.650, shall not exceed two million dollars for all claims arising out of a single accident or occurrence and shall not exceed three hundred thousand dollars for any one person in a single accident or occurrence

However, what if the public entity has more than $300,000 in insurance coverage? Is that a waiver of the sovereign immunity limit of $300,000? Recently the court addressed that very issue in Farm Bureau Town & Country Ins. Co. of Missouri v. American Alternative Ins. Corp. In the Farm Bureau case, which involved a Missouri car accident with serious personal injures, the issue was addressed of whether or not a public entity (a fire protection district in this particular case) waives the sovereign immunity limit of $300,000 by purchasing insurance coverage in excess of that amount. The analysis of the case has wrote:

"Section 537.610.1 allows political subdivisions of the state to purchase liability insurance for tort claims and waives sovereign immunity `only to the maximum amount of and only for the purposes covered by such policy of insurance' or self-insurance plan.'" Kunzie v. City of Olivette, 184 S.W.3d 570, 574 (Mo. banc 2006). If the entity "maintains insurance that covers these types of claims, then it will have waived its immunity under section 537.610 for the specific purpose of and to the extent of its insurance coverage." Id. This waiver through the purchase of insurance effects "an absolute and complete waiver of all immunities." Id. The insurance effects such waiver when, "the plaintiff's claim falls within the purposes covered by the defendant's policy." Hummel v. St. Charles City R-3 School Dist., 114 S.W.3d 282, 284 (Mo.App. E.D. 2003). Here, it was stipulated that "[a]s a result of the . . . accident . . . various claims were asserted against [Mr.] Day" and that the amounts were "reasonable and were necessary to settle the claims against [Mr.] Day." .

Consequently, the Fire District waived sovereign immunity to the limits of the AAIC policy. This case may open the door to getting around the sovereign immunity limits in Missouri personal injury cases, and each case will be very fact specific, particularly, the language of the insurance policy and how it addresses, if at all, any waiver of the limits.

The above case involved a fire fighter and an automobile accident. Currently, St Louis brain injury lawyer, Ben Sansone, is handling a case against a Missouri school district after the center pole between the double door to the gymnasium was secured negligently and fell and struck a 13 year old boy in the head as he walked through the door. The insurance policy is in excess of $300,000, so the issue of the waiver of limits will come up in our case as well. This is a pending case and I will update this article if this issue us addressed.

In April 2008, my client was a passenger on a motorcycle when the driver lost control of the bike and crashed while going around a turn. See St Louis Personal Injury Attorney Article: "Illinois Uninsured Motorcycle Accident Injury - Uninsured Coverage as a matter of Public Policy". We were able to overcome multiple factual and legal hurdles in this case and end up with an excellent result for our injured client.

First major obstacle was that our client was knocked unconscious by the motorcycle crash and the driver, in an obvious attempt to avoid the police, took her to a hospital several hours away where his mom worked as a nurse. Needless to say, the police were never contacted and an incident report was never done. This was a major problem because if the accident is not documented the insurance company will immediately claim it never happened. By the time my firm was contacted, the local Belleville police refused to take a report , claiming they cannot take a report since it had been two months since the accident.

After several months of investigation, we were able to track down the driver of the motorcycle and also identify the owner. The driver was incarcerated and refused to speak with our office. however, through the course of the case we were able to establish that the owner did not have insurance on the motorcycle, and therefore, the driver was an uninsured motorist. This allowed for the claim to be made through our client's uninsured motorist coverage through Shelter Insurance. For a discussion about uninsured (UM) and under-insured (UIM) motorist coverage, see St Louis Car Accident Lawyer article: "Missouri Underinsured and Uninsured Insurance Coverage & Which Policy Applies Mine or the Owner of the Car?"

The issue of uninsured motorist coverage was a little complicated in this case as our client was a Missouri resident and her uninsured motorist coverage was through a Missouri policy which dictated venue and choice of law in Missouri. However, it was more beneficial to have the case in Belleville Illinois, primarily because the likely jurors are more likely to be Plaintiff friendly as opposed to the Missouri venue we may have been forced to be in.

Knowing this, Shelter tried to get the case dismissed and force us to file in Missouri and in their home county, Shelter relied on the Illinois Insurance code that requires that all insurance policies "renewed, delivered, or issued for delivery in this state [Illinois]" contain a mandatory arbitration clause with respect to uninsured motorist claims. See 215 ILCS 5/143a. However, the policy was not renewed or delivered in Illinois, therefore, the mandatory arbitration did not apply; therefore we filed a Response to the Motion to Dismiss and the Judge ruled in our favor and Ordered the case to remain in Illinois by denying Shelter's motion to dismiss.

Initially, our client thought she had a total of $50,000 in Missouri UM coverage, however we were able to identify additional UM coverage through other insured vehicles and raised the UM limit to $150,000 through stacking the polices. For information about stacking UM coverage see St Louis Motorcycle Lawyer article covering Stacking: "St Louis Missouri Motorcycle Accident and Injuries - Driver Inattention and Struck Motorcyclist when Changing Lanes - Uninsured Motorist Claim"

In the end the case settled for $130,000, our client did not expect the case to be worth anywhere near that amount and was very happy with the outcome. This settlement was the result of persistent legal work and investigation to fining all possible theories of liability and insurance coverage available.

Medicare liens and other healthcare liens play an important role in personal injury cases and need to be addressed early on in the case and handled properly to limit the amount of the lien. See St Louis Personal Injury Law Article: "Medicare recovery against Personal Injury Awards - Injury cases Held Hostage by Medicare"

In the case of Wilson v. State Farm Mutual Automobile Insurance Company, No. 3:10-CV-256-H, 2011 WL 2378190 [2011 U.S. Dist. LEXIS 63430 (W.D. Ky., June 15, 2011), the United States District Court for the Western District of Kentucky held that an auto insurance carrier was not acting in "bad faith" by withholding payment of car accident settlement check pending determination of Medicare's potential lien and payment amount required to satisfy that lien.

In the car accident case mentioned above, the plaintiff filed an uninsured motorist claim and the case was settled for the auto insurance uninsured motorist coverage's policy limits. However, the insurance company would not pay the settlement until after it obtained Medicare's reimbursable payment amount. The injured driver sued the insurance company claiming that the delay was bad faith.

The court ruled that the withholding of payment was not bad faith. The insurance company could be held liable by Medicare if they made the payment to the Plaintiff and then the Plaintiff never makes payment to or satisfies Medicare's lien. Since they were open to potential legal liability the court ruled they did not act in bad faith.

Factually, the above auto accident case involved the plaintiff who was a passenger in a truck that was involved in a car crash. The plaintiff was injured and Medicare paid some of his accident related medical bills. Since the at fault driver of the other vehicle was uninsured, the plaintiff filed an uninsured motorist lawsuit against his insurance company, State Farm. The auto insurance company agreed to settle the case for the uninsured motorist policy limits.

State Farm attempted to determine Medicare's conditional payment amount, which is the amount they will accept to satisfy any lien they have against the case. The plaintiff refused to help get the Medicare reimbursement amount determined and demanded that State Farm tender the settlement check. Well, clearly this issue is now resolved by the court as the bad faith claim by Plaintiff failed. Showing the importance of getting liens under control and amounts determined early on in a case in order to facilitate a smooth and quick payment to the injured client for their personal injury.

Medicare liens are just one of the dozens of issues that need to be handled by a professions and once of the reasons retaining a qualified and experience personal injury lawyer early on in your case is so important. See St Louis Car Accident Attorney Article:"I Was Injured in a Missouri Car Accident, Why Do I Need to Hire a Personal Injury Lawyer?"

Continue reading "Auto Insurer Withholding of Car Accident & Injury Settlement because of Potential Medicare Lien - Bad Faith? " »

Not only am I a bike accident injury lawyer, but I have also spent hundreds of hours and thousands of miles on a bicycle around the St Louis area. I have clients that come to me after being hit by a car while on a bike and I have friends and people I ride with who tell me stories about close calls and some about being hit by cars as well. There are a few common ways drivers hit cyclists unintentionally; see St Louis Injury Attorney Article: Common Causes of Bike Accidents and How to Avoid Them.

Right-of-way at intersections is commonly misunderstood and one of the legal issues of who is at fault when dealing with bicycle accident cases. More accidents occur at intersections not monitored by traffic signals. Keenly aware that most of us snoozed during our driver's education class, here is a refresher course on proper intersection protocol. When two or more vehicles (bicycles included) arrive at an intersection at the same time and there is neither person nor sign in place to indicate whose turn it is to go; the person to the right always has the right of way. When two or more vehicles arrive at an intersection at separate occasions, whoever gets there first gets to go first.

Bicycle accidents involving intersections represent a small majority of personal injury lawsuits. But when they do arise, several of the same defenses are used: cyclist failure to yield, unable to see cyclist because of too dark of clothing, disregard of right-of-ways, speeding through intersections, rolling stops, and riding in the wrong lane or wrong part of the lane. All of these things create comparative negligence or full negligence on behalf of the cyclist. Thus properly yielding at intersections is required not only to hopefully avoid injury, but also to have a strong case against a negligent driver in case you are injured in a bike crash.

Do not give the negligent driver's defense team any excuse to blame you for the accident. Cyclists have enough trouble with juries as most people on a jury drive cars and a few ride bicycles. And as most cyclists know, drivers are sometimes reckless or hostile towards a cyclists right to use a road, those jurors are no different and there cannot be any accusation that the cyclist ran a stop sign or did not follow the rules of the road that drivers of cars are required to follow. I have personally seen it at a trial, one time I even had the reporting officer throw in a comment about cyclists causing problems by not obeying the rules of the road or wearing bright clothing. Under Missouri law, this was an improper comment and the trial judge properly struck the comment from the record and advised the jury to disregard the comment, however, you cannot unring the bell.

Continue reading "Avoiding Bike Injuries & Legal Liability at Intersections: Right of Way at Unmarked Intersections " »