Missouri Injury Law Blog

Guest Author, not affiliated with St Louis Personal Injury law firm, Sansone / Lauber.

You might think that the difference between these two types of claims is pretty obvious: one involves accident or injury in the workplace while the other involves incidents outside of your place of employment, such as a car accident or or DWI wrongful death, just to name a few. But it's actually a little more complicated than that. After all, you can experience a personal injury in the workplace that may not be covered by workers comp and you might also have an accident, injury, or illness outside the workplace that is covered. And there can be times when it seems like the two types of claims overlap. While you may have to seek the services of a qualified attorney to find out exactly how to go about filing your claim, since all cases are different, here are just a few of the major differences that you should be aware of.

First of all, workers compensation claims apply to you only if you are hurt on the job. However, this doesn't necessarily mean that you have to be at your place of employment when an injury or accident occurs. You may be running errands on the clock or engaged in travel for work. You could be at a work site. If you are involved in actions for your employer, you can try to claim workers comp, even if fault cannot be determined or if the incident was your own fault. Of course, there are some instances in which claims may be denied, but if your employer provides workers compensation, you have no grounds for filing a personal injury claim.

Personal injury claims, on the other hand, are generally filed in response to accident or injury that is the result of negligence or direct actions by others, and the person filing the claim has the onus to prove fault by others. Although this type of claim can be filed against an employer, it is usually preferable to file a worker's compensation claim first, since most companies are willing to offer workers comp in order to avoid a personal injury lawsuit. The reasons are multiple.

For one thing, workers comp has strict limits on coverage. It will cover medical expenses (often including physical therapy), retraining, and disability. Personal injury claims, on the other hand, have no limits on the type or amount of compensation the claimant may receive. Further, workers comp claims are decided by an impartial group or board members known as the Workers Compensation Board when the employer and employ cannot agree on compensation. Personal injury cases go before a jury, which may be easily swayed by a wronged claimant. So it's easy to see why most employers prefer the due process of worker's comp to the unknown outcome of personal injury lawsuits.
If a personal injury claim is filed, it could end up costing an employer a lot more money, since the goal of personal injury law is to make the injured party "whole", which could include punitive damages for pain and suffering, an area of compensation that is hard to define and therefore, could carry a hefty price tag. The truth is, you'll have to decide which type of claim is best suited to your case. But remember that a personal injury case could result in zero compensation, so if your employer offers workers compensation, you should consider taking it.

ABOUT THE GUEST AUTHOR: Carol Montrose is a contributing writer for the Maryland Accident Lawyer Group at Price Benowitz LLP. The firm has offices in Washington, DC, Maryland, Virginia, and New York and handles DUI, criminal, immigration, personal injury, and disability cases.

Guest Post by Anne Roberts.

California is notorious for the high rates of car crashes. More frequently, news reports regarding these incidents reach the awareness of the public and statistics shows that a car crash occurs every 10 seconds at the United States.

Although the numbers are high, few people knew the right way in dealing with these kinds of accidents. They forget that every case starts from the occurrence of the accident and that it is crucial to seek the assistance of the local Los Angeles car accident attorneys which would help them all throughout the litigation process.

Let's face it - court trials or litigations are hassles. It makes use of a lot of time and without the assistance of someone knowledgeable in California Traffic Laws, there would be less probability in winning the case. There are a lot of lawyers specializing in personal injury cases, under which the category car accidents fall upon. The following outline shall act as an umbrella in further defining car accident cases.

Negligence

A lot of personal injury cases which involves road mishaps are founded on proving negligence. In order to create a sound complaint there must be solid ground for negligence. This means that the accident happened because the one being complained has acted haphazardly, thus injuring the other party.

Personal Injury

Personal Injury is defined as damages done to one's mind, feelings or body. These include damages done to someone involved in a road mishaps and other accidents such as minor injuries like wounds, bruises or lacerations and the more serious ones that resulted from the impact such as spinal or brain injuries. These are more frightening since they may be left undetected for some time and lead to permanent disability, therefore the client should be able to prevent this and compensate for future medications which will be pointed out by the Los Angeles car accident attorneys.

During the litigation process the two parties involved would be divided in the following:

Plaintiff

The complainant or the plaintiff would be the one to file for a petition against the alleged negligent party.

Defendant

This party accused of the crime that was committed, wherein a formal charge in court was filed.

Importance and Advantages of Hiring Car Accident Lawyer

As stated beforehand, it is advisable to find someone specializing at personal injury cases to have better chances of winning the case. An attorney would help in formulating a sound claim upon the filling of the complaint which strengthens the case being fought. Moreover, insurance companies are oftentimes tricky in order to flee from the responsibility of paying the claims; this shall be countered by the hired counsel. Many firms offer a lot of services which exceeds the responsibilities expected of a counsel; this may include even gathering witnesses or evidences for the case. Some may even have the "No Win, No fee" policy where they would not get any payment if the case is not won over. On the other hand a third or 40 percent of the "damages award" - or the grants given to the winning party shall be the standard commission of these firms in some parts of United States.

Medical malpractice claims are very complex and adversarial, and in that environment every edge counts. In reviewing cases with doctors to act as your expert, they sometimes have preliminary reports in the form of an email based on their initial understanding of part of the medical record. This is done in preparation for filing a lawsuit or for trial and should be kept between the attorney and expert. In a perfect world the expert will call the Plaintiff's lawyer to discuss his opinions, but with the convenience of email that is not always the case.

A preliminary report by an expert containing mental impressions based on initial review of case should be protected under Rule 56.01(b)(3) as Trial preparation materials. Rule 56.01(b)(3) states that a

"party may obtain discovery of documents and tangible things otherwise discoverable under Rule 56.01(b)(1) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative, including an attorney, consultant, [...] only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the adverse party is unable without undue hardship to obtain the substantial equivalent of the materials by other means."

The work product doctrine in Missouri protects from discovery both tangible and intangible work product. Ratcliff v. Sprint Mo., Inc., 261 S.W.3d 534, 547 (Mo.App. W.D.2008). Tangible work product consists of documents and materials prepared for trial and is given a qualified protection under Rule 56.01(b)(3). Therefore a preliminary report sent to counsel by their expert is protected from discovery as trial preparation materials if the preliminary report is: (1) documents or tangible things, (2) prepared by or for a party or a representative of that party, (3) in anticipation of litigation or for trial. State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367 (Mo. banc 2004)

Such trial preparation materials may be discovered only if the party seeking discovery shows a substantial need for them in the preparation of the case and an inability to obtain the substantial equivalent of them without undue hardship. Rule 56.01(b)(3).See Edwards v. Mo. State Bd. of Chiropractic Examiners, 85 S.W.3d 10, 26 (Mo.App. W.D.2002).

Moreover, Rule 56.01(b)(3) requires that in ordering discovery of such materials stated above, when the required showing has been made, "the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative [expert witness] of a party concerning the litigation." Therefore, even if the party seeking the report show the substantial need and undue hardship, the preliminary report contains nothing but the Relator's expert's mental impressions, conclusions, and opinions and thus must be protected in its entirety. In this case the Court ordered the entire report produced.

Additionally, Missouri Rule 57.03 does not authorize the noticing party or require the witness to produce documents simply because they are requested. Under Rule 57.03, any Notice of Deposition requesting production of documents must be accompanied by a subpoena. State ex rel. Missouri Highway and Transportation Commission v Anderson, 759 SW2d 102 (Mo App S.D. 1988) holding, In connection with and experts deposition, a party may obtain the expert's records relating to the case by serving a subpoena duces tecum. Id at 106.

Continue reading "Disclosure of Expert Witness' Preliminary Report in Missouri Personal Injury Actions" »

As lawyers we get used to required awkward legal terminology which is often required to get certain documents or testimony into evidence at a personal injury trial. In Missouri the phrase "Reasonable Degree of medical Certainty" has been required for some time in order to get a doctor's or medical professional's testimony into evidence at trial.

Oftentimes this is not a problem in most Missouri injury lawsuits, because at the end of a deposition or questioning at trial I simply ask the doctor, "Have all your answers and opinions been within a reasonable degree of medical certainty?" and 9 times out of 10 the doctor will answer "Yes." Usually, they know it is a legally required phrase for their opinions to get into evidence. However, some not so seasoned medical providers, for one reason or another, will not agree with that statement, even if they agree with the burden of proof of "more likely than not", or "but for".

Recently, a Jackson County Missouri case of Cable v St Luke's East Hospital, addressed this issue and the Judge ruled that the phrase is not required. Stating "Like most non-professional expert witnesses, Dr. Lynch does not use the "magic words" of reasonable medical certainty in her practice. She did opine, however, that she believed it was more likely than not that Plaintiff would have avoided the nursing home had he not experienced the problems Plaintiff attributes to Defendants' alleged negligence." The Court cited Tompkins v. Cervantes, 917 S.W.2d 186 (Mo. App. 1996).

In recent years, a few Missouri Courts have been giving less stringent followg of the magic words. In Wollen v. DePaul Heath Center, 828 S.W.2d 681, 682 (Mo. en banc. 1992), the court stated, "The cases on reasonable medical certainty ... reflect the lack of clarity that can [occur] when the legal profession tries to impose its terms on other professions." In Schiles v. Schaefer, 710 S.W.2d 254, 262 (Mo. App. 1986), the court of appeals held, "'reasonable medical certainty' is not a mandated 'verbal password' in questions propounded to an expert witness." The Supreme Court endorsed that view in Kircher v. Purina Mills, Inc., 775 S.W.2d 115, 117-18 n.2 (Mo. en banc. 1989).
rlington Northern, Inc., 212 Mont. 514, 689 P.2d 273, 277 (1984):

Missouri courts have generally adhered to a test of "reasonable medical certainty" as the basis for admissibility of medical records at personal injury trials, although they do not require of doctors the same strictness in testifying that was once required. Although Missouri courts still formally adhere to a "reasonable medical certainty" standard, the term is not well understood by the medical profession. The term was adopted in law to assure that testimony received by the fact finder was not merely conjectural but rather was sufficiently probative to be reliable. The Cable Court ruled that "Our evidentiary standards are satisfied if medical testimony is based upon an opinion that it is 'more likely than not.' ".

In my St Louis personal injury practice I have always had the opportunity to clarify the "reasonable degree of medical certainty" phrase with doctors before they testify, and so far no problems. I will continue to always have doctors recite that phrase because different courts will treat this matter differently. But it is good to see that if one day I run into the doctor who does not like the phrase, I have cases to back up an argument that the phrase is not needed.

The ethical state of business practice pivots on two things these days: bad press and/or lawsuits. What was once regulated by honor and integrity, these two seemingly more persuasive motivators have enabled us to be made aware of negligence pertaining to our health and welfare such as: the handling of beef in markets, assisted living facilities, police and precinct procedures, and careless doctors still practicing medicine. There is no doubt that investigative journalism perpetuates the public's outcry ball rolling.

Practicing in St Louis as a personal injury lawyer for ten years and after handling a lot of medical malpractice cases, the need for regulation and accountability in our healthcare industry is obvious. Most doctors hate lawyers so much that they will go to great lengths to cover each others backs. Don't get me wrong, most don't lie, but just about all will refuse to cooperate and help a patient who has been harmed by a doctor's negligence.

A major blow has been dealt to the health care consumer regarding accountability of providers. On September 1, in response to a decision by the Obama administration, the Health Resources and Services Administration (HRSA), an agency of the government run Department of Health and Human Services, removed a great source used in identifying oversights by state medical boards. The National Practitioner Data Bank (NPDB) was used by many sources such as state medical boards, hospitals, journalists, and insurance companies. The information previously accessible from this site listed, in broad descriptors, lax responses toward doctors with multiple malpractice payouts who were either never disciplined by the medical boards or their disciplines included numerous suspensions without a revocation of their medical license. It is important to note that the specific doctor's names are not mentioned in the public use file portion of the NPDB and any information that would name a doctor or facility specifically, must be acquired through other investigative resources.

Neurosurgeon Dr. Robert T. Tenny, of Kansas, complained to HRSA and threatened legal action if the information was not taken off the internet. This complaint made its way to the executive level of the government. A decision was quickly made and access to the site was removed. A letter was also sent to the Kansas City Star reporter who broke the story of Dr. Tenny's countless medical malpractice and wrongful death suites filed against him (all of which the good doctor has lost so far). I am sure the doctor would argue he is a good doc and the legal system is wrong every time.

The HRSA threatened the reporter that he could be liable for $11,000 or more, in fines for violating the federal law's confidentiality provision - though nonesuch violations were actually committed. Journalism and health care advocacy groups also responded quickly to these actions, including these letters to the administration rebuking not only the decision to shut down the public access file but also in response to the threat against the reporter. The journalists are actually baffled that the Obama administration has backtracked on its promise of greater transparency. As described by Charles Ornstein, president of the Advocacy for Health Care Journalists, who stated that the publically available anonymous data has been accessed for years, "nothing else has changed; just their interpretation (of the law)". Interpreting the law to suit oneself or, as in this case, doctors who have repeatedly shown an apathetic attitude toward patient care, or complete incompetence, does nothing but add more restrictions to those that are trying to hold these same people accountable for their actions.

St Louis injury lawyers who routinely deal with medical malpractice cases know that medical negligence cases are not only complex and expensive, but highly adversarial. It is often the approach of medical malpractice insurance companies and their lawyers to fight them with little to no negotiation and vigorous defense.

A common defense tactic in big medical malpractice cases is to name multiple doctors to testify on the same subject as an expert. Why do this? Two reasons, one, if one doctor testifies bad in a deposition then the defense will dis-endorse that doctor and stick with the other doctor. This tactic was used in our Medical malpractice case with spinal cord injury. Second reason, under Missouri Rules the Plaintiff has to pay the defense doctors for their time, that amount is usually $400-$700 per hour or even more. Thus it puts financial strain on the opposing party to force them to spend more money and put more risk on the table. Additionally, lawyers in the medical malpractice profession all know that is is difficult to get a doctor to testify against another doctor, but easy to find doctors lining up to defense other doctors.

How to counteract this tactic? Simple, first, if one of the experts does poorly in their deposition make sure that you videotaped it, then endorse that expert as one of your own and play the good parts of the deposition at trial.

Second, file a motion for protective order limiting the defense to only one medical expert on particular issue. This motion should almost always be granted in one form or the other. Usually the Judge limits them to one expert and they have to choose, or some judges will allow the duplicate experts to remain but require the defense to pay the expenses associated with the second deposition and then force them to choose one or other other expert for trial.

Missouri Rule 56.01(c) states:

"Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense..."

Defendant's endorsement of two similar experts who will testify to the same thing is duplicative and cumulative. Plaintiff will be caused to incur undue burden and expense in deposing both witnesses, and will suffer prejudice.

It is proper to exclude cumulative evidence. Payne v. Cornhusker Motor Lines, Inc., 177 S.W.3d 820, 840 (Mo.App. E.D. 2005).

Relevancy is the key criterion for admission of evidence, and the court must find evidence both logically and legally relevant in order to admit it. Olinger v. General Heating & Cooling Co., 896 S.W.2d 43, 48 (Mo.App. W.D.1994). "Evidence is 'logically relevant' if such evidence tends to make the existence of any material fact more or less probable than it would be without the evidence." State v. Sladek, 835 S.W.2d 308, 314 (Mo. banc 1992) (Thomas, J., concurring). But the inquiry does not end with logical relevance. Evidence must also be legally relevant to be admitted. Id. To determine legal relevance, the court must weigh the probative value, or usefulness, of the evidence against its costs, specifically the dangers of unfair prejudice, confusion of the issues, undue delay, misleading the jury, waste of time, or needless presentation of cumulative evidence. Id. The trial court must measure the usefulness of the evidence against its cost, and if the cost outweighs the usefulness, then the evidence is not legally relevant, and the court should exclude it.

Kroeger-Eberhart v. Eberhart, 254 S.W.3d 38, 43 (Mo.App. E.D. 2007).

Another example is Grab ex rel. Grab v. Dillon, 103 S.W.3d 228, (Mo.App. E.D. 2003), in which the plaintiff in a medical malpractice action sought to introduce a conclusion from a pathologist, which "came to the same conclusion as five other pathologists who reviewed the slides." The trial court excluded the pathologist's opinion because "[i]t is typically considered proper to exclude cumulative evidence." The appellate court affirmed the exclusion of the pathologist's opinion.

Continue reading "Use of Multiple Medical Experts on Same Topic, Should be Excluded as Cumulative " »