Missouri Injury Law Blog

It has long been the law in Missouri that witnesses cannot be impeached on collateral matters except certain criminal convictions. What does this mean in non-legal terms? Basically, during cross examination a lawyer cannot try to make you look dishonest by referring to a dishonest statement or act that has nothing to do with the case or facts at hand, unless it is a criminal conviction. Meaning, you cannot be impeached for an alleged lie or dishonest statement that would not otherwise be admissible, so of the impeachment evidence would not be admissible for any other reason, then it is not admissible for impeachment.

This changed in 2010 with a new Missouri Supreme Court ruling in the case of Mitchell v. Kardesch, 313 SW 3d 667 (MO 2010). This was a St Louis medical negligence case wherein the defendant doctor inaccurately stated (i.e. lied) in written discovery about his medical license being suspended. Typically, suspension of a medical license may not be admissible at a medical malpractice trial, however, the Plaintiff's lawyer attempted to impeached the defendant doctor during cross examination on the basis that he answered in written discovery that his license had not been suspended when it actually was. As expected, the trial court judge ruled that the Plaintiff's attorney would not bring this up in front of a jury as it was impeachment on a collateral matter.

It has long been the rule in Missouri that on cross-examination a witness may be asked any questions which tend to test his accuracy, veracity or credibility or to shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge.

Common forms of Impeachment:

Evidence showing witnesses inability to perceive or memory. Think My Cousin Vinny scene where he impeached the witness with the thick glasses and challenges her ability to see clearly. Another Cousin Vinny example, the impeachment of the male witnesses based on his inability to perceive time, this was shown through his inconsistency with the time he testified to the events occuring and the time it took to cook his grits on the stove at the same time. Also, drug or alcohol use falls under this category as well.

Admission of Evidence of Prior Convictions. This is a common form of impeachment, in Missouri convictions are admissible to impeach the witnesses. As a practice tip, I typically reserve the prior convictions to crimes that go to honesty, such as theft or stealing; attacking a witness on any crime may garner sympathy from the jury as it may appear you are unfairly beating up on them.

Admission of evidence of the witness's bias, interest or prejudice. This is the situation of personal relationship with a party, financial interest, or evidence of acts or statements that tend to show bias toward one party or another.

Admission of Prior Inconsistent Statements. Pretty easy concept, witness previously testifies inconsistent with present testimony.

Admission of Evidence of Witnesses' Character for Truthfulness or Veracity. This is the more broad and vague basis that was expanded by the recent ruling on the Mitchell v. Kardesch case. This does not include general moral character, but evidence of the witnesses ability to tell the truth. The scope of the issues able to be brought up has been limited int he past by several cases including State v. Wolfe, 13 S.W.3d 248, 258 (Mo. banc 2000), stating:

"The impeaching testimony should be confined to the real and ultimate object of the inquiry, which is the reputation of the witness for truth and veracity. In other words, specific acts of misconduct, without proof of bias or relevance, are collateral, with no probative value."

Over the next several years we will see how this new case opens up the ability of lawyers to get into collateral issues on cross examination in the name of impeachment.

Injuries due to dangerous conditions are referred to as premise liability cases, and the distinction between a premise liability case and a medical malpractice case is generally obvious, however, if the dangerous condition on the property happens to be a healthcare providers property, they may try to argue it is technically a medical malpractice case, thus invoking a whole set of laws specific to healthcare providers that make it more difficult and expensive for an injury victim to pursue a personal injury cause of action. See What Constitutes a Healthcare Provider for Injury Claims?

Particularly, in order to pursue any medical malpractice case in Missouri you must have an expert that is in the same general field of medicine, usually an MD of some sort. That expert must sign an Affidavit of Merit under RSMo 538.225 stating that more likely than not, and within reasonable degree of medical certainty, the defendant breach the standard of care. For general negligence claims, such as auto accidents, slip and falls, etc ... this is not required.

The Missouri cases that have dealt with the issue of whether the provisions of §538.225 apply to a given case have focused on two (2) general areas of inquiry: 1) was the defendant at issue acting as the injured individual's health care provider at the time of the acts or omissions at issue - i.e., what was the true relationship between the plaintiff and the defendant at the time; and/or 2) was the defendant providing a health care service to the injured individual at the time of the acts or omissions at issue - i.e., was the act or omission at issue a health care service done as part of that provider-patient relationship.

For example, in Morrison v. St. Luke's Health Corporation, 929 S.W.2d 898 (Mo.App. 1996). a patient that was in the process of being discharged from St. Luke's Hospital fell over a briefcase that had been left in the hospital hallway and sustained injury. In finding that a 538.225 affidavit was not required, the Court of Appeals found that the patient's claim, despite the fact that the plaintiff was actually then still a patient of the hospital, did not arise out of the provider-patient relationship, but rather the owner/occupier-entrant relationship.

Another case, Meekins v. St. John's Regional Health Center, Inc., 149 S.W.3d 525, 533 (Mo.App. 2004). A hospital employee was required to undergo a drug screen test at the hospital as part of her employment, and she ultimately alleged a general negligence claim against the hospital claiming that the drug screen test had been performed incorrectly. In finding that the healthcare affidavit was not required, the Missouri Court of Appeals "determine[d] that a drug screen test performed by a hospital is not a health care service if such is not performed within the confines of a physician/patient relationship."

So even if an injury occurs on a medical providers premises and even sometimes when you were there fore medical treatment, medical malpractice laws do not apply in all situations involving healthcare providers.

Injuries to cyclist happen all too often as a result of driver inattention. See Common Causes of Bike Accidents. Typically, the negligent driver will immediately claim they did not see the cyclist and claim that as their defense, basically shifting blame to a cyclist for not being seen by the driver, despite adequate lighting, visible clothing, and no violation of the law or negligence by the biker.

To be clear, negligence law in Missouri and just about every state in the US, requires unintentional breach of a duty, not intentional breach of a duty. Intentional breach of a duty, i.e. intentionally hitting a cyclist, is criminal assault and battery, and on the civil side is an intentional tort, such as assault, not negligence. Negligence is inadvertently or recklessly causing a collision. Examples of negligence: failing to hit your brakes in time and hitting the rear of another car, not seeing another cyclist or motorist and turning into their path of travel and casuing a collision, inadvertently cutting a cyclist off, inadvertently running a red light because you are looking at your cell phone, etc ... Therefore, the "I did not see them" defense and therefore "I did not do it on purpose" defense is not a defense at all.

I know this seems to be an obvious distinction, but in order to sway juries, defense lawyers try to mix up concepts of negligence and intentional acts as part of their defense, you cannot let that happen. Attempts to improperly influence the jury with the argument that because the bike injury or other accident was not caused by an intentional action, then the victim should not be compensated fully, because by fully compensating the victim you are somehow punishing the defendant who did not do anything on purpose.

Why is the negligence versus intentional act distinction important in bike injury and other personal injury cases?

This is a very important mindset you have to be prepared to deal with when going into a jury trial. During "voir dire", commonly know as jury selection, the victim's lawyer must discuss with the jury that the burden on the Plaintiff (victim) is to show negligence, not intentional conduct; but even more importantly, through jury selection and throughout the trial, the injury victim's lawyer must emphasize with the jury that the juries' job is to award money or compensate the Plaintiff for the harms and losses suffered, that is it! It is improper for them to consider impact on the defendant, their insurance company, or other factors, because once the jury determines the defendant was negligent then the only thing to consider is what amount of money will make up for the victim's harms and losses. The award of money damages is solely about past, present, and future harms and losses suffered by the victim. See Calculation of Damages in Injury Claims

See Also:

Bicycling.com article: The "Ignorance is Bliss" Defense

Continue reading "The "I did not see the cyclist" Defense and dealing with it at Trial" »

I personally see it all the time and in my experience as a St Louis med mal lawyer, most people are not surprised that doctors and nurses cover each other's backs to conceal mistakes and surgical errors even when the patient is severely injured or dies. Before I continue with this article, I must say that the vast majority of doctors and nurses are good, competent, and honest people. But when errors occur at the hands of the minority of incompetent medical care providers, it is not uncommon for there to be a cover up. Most healthcare providers justify the cover up, as to them the doctor or the nurse did not make the mistake on purpose and their intentions were to help the patient. They also feel that if a medical mistake is a "known complication", that automatically means they did not do anything wrong. Well.... as I like to say to a jury..... it is a "known complication" of driving a car that someone may be negligent, run a red light, and cause a car accident; that does not mean the driver who was not paying attention and who caused the "known complication" was not negligent. The same applies to healthcare providers. If they were accused of causing the injury on purpose, that would be criminal, not negligence. I am not exaggerating; I have had multiple defense expert doctors make that exact claim; that the defendant doctor did not do it on purpose, so he was not negligent. Amazingly, an educated person can say that with a straight face.

It is this attitude of many healthcare providers that leads to the justification to cover up 80% of medical errors. According to the U.S. Department of Health and Human services, not according to lawyers associations, 80% of errors are unreported. The under reporting percentages applied just as much to medical malpractice wrongful death as to minor mistakes and injuries. Meaning medical errors and doctor negligence are often covered up, not reported, or reported in medical records as something else to hide malpractice. There are numerous articles about medical errors going unreported and recently ABC News published a story: "Report: Hospital Errors Often Unreported".

I have personally been the lawyer on several cases wherein the operative report indicated something completely different than the post-op radiology images. The operative report will be written as the operation went perfectly, but the post-op radiology images show surgical clips left in, anatomy cut that was not reported as being cut, and so on. One example is a negligent lap-choli case I am currently handling, the doctor's op report was flawless, yet he left multiple surgical clips in the patient on her common bile duct, blocking her bile from her liver to her small intestine and causing a major complication. See Surgical Clips Left on Common Bile Duct by Missouri Surgeon

Keep this information in mind this election year as I am sure politicians will preach about the necessity of "tort reform" and limits on damages. What they are really saying is that their lobbyists paid them a lot of money to push laws that give them special treatment. Already healthcare providers, in most states, have special protections under the law that shield them from responsibility in many medical malpractice situations. Politicians and their surrogates try to scare you with the talking points of needed tort reform to keep doctors from fleeing the state and to keep health insurance premiums for all of us from going up. Before you listen to that propaganda again, see Medical Malpractice "Tort Reform" Myths Proven Wrong by Statistics

See Also: Missouri Medical Malpractice Issues - Almost No Public Information About Serious Medical Errors

Continue reading "80% OF MEDICAL ERRORS UNREPORTED according to US Department of Health and Human Services Report in January 2012 " »

Often after a car accident or other injury the victim's future medical condition cannot be certain and often doctor's will opine that future surgery may be required as a result of the injuries sustained. This leads to the questions of ... when can the risk of future surgery be submitted to a Missouri jury for their consideration?

This issue was addressed by the Missouri Supreme Court in Swartz v. Gale Webb Transportation Co., 215 SW 3d 127 (MO 2007). This case arose from serious injuries, including lower back disc bulges, sustained after a car and bus collision. The plaintiff was the passenger in a car that was struck by a school bus owned by the defendant, Webb Transportation. The jury determined that the bus driver was at fault and as part of their verdict considered the need for potential future surgery. The defendant appealed claiming the jury should have never been able to hear medical testimony about future surgery and appealed on that ground.

The defendant argued that it was error to admit the doctor testimony that the Plaintiff's injuries put her at an increased risk of future surgery and other complications. Claiming that the experts were not able to testify that "more likely than not" the injured victim would need surgery in the future as a result of her injuries sustained. One expert testified that she had a 50/50 chance of requiring future surgery, a "more likely than not" standard requires a just a little bit more ...50.1% sure not just 50%. Additionally, the doctor admitted future surgery was "speculation" and could not be stated "within a reasonable degree of medical certainty". All buzz words or phrases that are problems for the Plaintiff to meet her burden of proof. See Injury Lawyer Article: Reasonable Degree of Medical Certainty Standard.

Despite the uncertainty of the future risk of surgery and problems, the testimony and evidence of future surgery and problems is admissible. It is admissible for purposes of establishing the nature and extent of the Plaintiff's current injuries.

"The fact that her back injury carries with it at least a 25 percent chance, and perhaps a 50 percent chance, of requiring surgery in the future makes it a worse injury than a back injury that has a lesser chance of future complications requiring surgery or that had fully healed by the time of trial."

Since the present injury brings with it this increased risk of future injury this "is information the jury should have in the difficult task of trying to give plaintiff's condition a dollar value." Because the testimony of doctors was admissible for the purpose of establishing the nature and extent of the victim's injuries, the trial court did not abuse its discretion in admitting the testimony or in refusing withdrawal instructions.

Therefore, an experienced Missouri injury attorney will get any evidence of future problems in front of a jury so they can fully decide the damages to award and the full nature and extent of the injury. Even if it is speculation that the future surgery would be needed, it goes to the extent of the present injury. However, I believe if you want to ask for specific damages - the jury to award the cost of the future surgery - you need a doctor to testify it is more likely than not the surgery would be required and what the likely cost would be.

A prerequisite to being able to successfully make a Missouri worker's compensation claim is that the injury occurred while at work and within the course and scope of your employment. Seems like a pretty easy thing to determine, right? A case was recently heard by the Missouri Supreme Court, Sandy Johme v. St. John's Mercy Healthcare, click here for the case summary, audio of hearing, and briefs filed.

This particular case was a St. Louis worker's compensation case that was disputed by the employer claiming the alleged work related personal injury as not within the course and scope of her employment and that is the specific issue the Supreme Court heard recently. The work comp injury case arose from an incident that happened during the claimant's work hours while she was making a pot of coffee at work and with equipment provided by her employer, as most of us would probably agree, a pot of coffee is pretty standard at most offices and work places. While making the coffee, the employee turned and stepped on the edge of her shoe, falling to the floor. To me, as a practicing St Louis work comp injury lawyer, the argument ends here, she was at work and injured herself, that is a work comp claim under Missouri law.

The employee filed a claim for worker's compensation. Initially the work comp administrative law judge ruled that the employee's injury did not arise from or within the scope of her employment with St. John's. Employee appealed by seeking a review hearing from the labor and industrial relations commission, which reversed the administrative law judge's finding and awarded worker's compensation benefits to to the employee. St. John's appealed and the case found its way to the Missouri Supreme Court.

Under Missouri statute 287.020.3 "Workers' Compensation Law" secitrions (2)(a)&(b) provides that an injury arises out of and in the course of the employment if:

(a) It is reasonable apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury;

and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

Clearly under this definition the employee's injury in this case qualifies as a work comp injury and thus allowing a successful claim. The Missouri Association of Trial Attorney's (MATA) filed an amicus brief (friend of the court) - click here for the full MATA brief, very well written and discusses the law applicable to this case and topic. Additionally, they end the brief with the public policy argument:

"To exclude injuries such as in Johme, Pile and Whiteley would be to create a debate from thin air that was not intended or created by the 2005 amendments, causing vast uncertainty as to when an injury does or does not arise out of and in the course and scope of employment, to the detriment of millions of employers and employees alike. The Court is not being asked to read into or exclude additional meaning into the text of the 36statute, only to determine if certain classes of activities at work still fit within the protections of workers' compensation, as has long been expressed by the same exact plain language we have today as we have had in Missouri for generations."

We will keep and eye on the court's ruling and update this article at that time. This is a very important case, additionally, the Supreme Court should be issuing a ruling late this winter or this spring regarding the constitutionality of Missouri's medical malpractice damage caps. See St Louis Injury Law Article re: Damage Caps Heard by Supreme Court.

Continue reading "Supreme Court to Decide, what is Within the Scope of Employment under Missouri Workers' Compensation" »

It has been a long held principal under Missouri evidence law that in trial a personal injury lawyer, generally, cannot tell a jury through testimony or argument, that the defendant has auto, homeowners, or other insurance coverage to pay any judgement or verdict the jury may award. This is often referred to as "collateral source rule", however, the collateral source rule can apply to other situations as well.

In fact, in "voire dire" or jury selection, the defendant does not even want to mention the word insurance, but the personal injury plaintiff's lawyer wants to talk about insurance as much as possible. Why? because if the jury knows there is insurance to cover a judgment they are likely to be more generous with their verdict. Jurors will sometimes give an inadequate verdict because they feel sorry for or do not want to saddle the defendant with a money judgement, and knowledge of insurance coverage alleviates that situation.

There are several ways for the Plaintiff to get the issue of insurance into the case (assuming the defendant is not an insurance company themselves).

1. The Insurance Question during Voire Dire:

Prior to jury selection and typically during pretrial, the Plaintiff's injury attorney should ask the court for permission to ask the jury one question about insurance and the general form of that question must be approved along with agreement that it cannot be used first or last and emphasis over other questions cannot be placed upon the insurance question. Typically, the question is phrased as"Does anyone on this jury panel work for or have an interest in __________ Insurance Company?" See, Ivy v. Hawk, 878 S.W.2d 442 (Mo.banc 1994), when the Missouri Supreme Court held it permissible for a plaintiff to ask if any potential jurors have an interest in a particular insurance company, as it "preserves the balance of permitting the plaintiffs to know if any members of the jury panel have an interest in the insurance company while avoiding the prejudice of emphasizing the issue of insurance."  Such a practice of allowing one "insurance question" protects the right of both parties to a fair and impartial jury.  Moore v. Middlewest Freightways, 266 S.W.2d 578, 586 (Mo.1954).

Then if someone has some interest in that particular insurance company the lawyer must be very careful as how to proceed and not improperly inject the issue of insurance into the case, or else risk a mistrial or a plaintiff's verdict being overruled. Typically, ask what interest the person has, and if it is that they are a policy holder, leave it at that. However, if it is more than that, such as they are an employee or a contractor for that particular insurance company, it is generally wise to call the jury member to the bench for further questioning outside the rest of the jury.

2.The Defendant Opens the Door:

On the flip side, the defendant or their lawyer cannot argue or imply to the jury that the defendant will be saddled with the judgment or have to pay out of their own pocket for the judgment, such an argument is great for Plaintiffs, because it opens the door for us to inject insurance into the case. Respond with argument to the jury that their is no evidence that the defendant will be personally responsible for any judgment and even if they were, for the jury to properly follow the law they must only consider what amount of money compensates the Plaintiff, not what would harm the defendant, unless punitive damages are an issue.

In the case of Ballinger v. Gascosage Electric Cooperative, 788 S.W.2d 506 (Mo. banc 1990). this issue was addressed directly by the appellate court. At the trial court level, the defense insinuated the defendant would have to personally pay any injury verdict, the very good personal injury attorney in that case responded as follows:

"That is just exactly the point I'm making. Mr. Oliver also said you will determine how much will be paid by the Defendants, and that is not true. There is no evidence in this case that the Defendants will have to pay one penny of any judgment entered. It's not for you to determine. (Emphasis supplied)."

The appellate court upheld the trial court allowing the above argument by stating in their opinion "The plaintiff may have skated close to the edge, but we conclude that there was no abuse of discretion." Meaning the trial court acted properly.

3. Other Situations:

Insurance clearly comes up in Missouri Uninsured Motorist lawsuits and Under-insured Motorist cases as the defendant is the insurance company themselves. Additionally, issues of insurance sometimes can be brought up, if more probative than prejudicial, during witness examination if they have relevant insurance background. Sometimes in medical malpractice cases malpractice insurance coverage of the expert being the same of the defendant doctor can be relevant. There are many other reasons, but generally, insurance stays out.

Continue reading "Missouri Evidence: Insurance Coverage Excluded From Jury as Collateral Source - Exceptions to the Rule" »