Missouri Injury Law Blog

The trend toward the use of social media has permeated every aspect of our lives. The legal system seems to be following this trend. Defense attorneys have been successful in presenting social media posts and pictures as evidence in personal injury cases. They are using social media as a source of discovery.

Insurance adjustors and defense attorneys regularly search through information on social media websites. They are hoping to find evidence that will go against the opposing party's claim of injury. Personal injury attorneys are currently advising their clients to cancel their social media accounts. Apparently, setting their social media posts to private is not enough to keep their privacy intact. In fact, if a personal injury client posts anything to do with an accident on a social media website, it can be treated as evidence in court.

In the Pennsylvania case of Zimmerman v. Weis Markets Inc., the judge ordered the plaintiff to provide the court with the login information for his social media account. The court reasoned that since the public portions of his Facebook and MySpace accounts showed evidence of his injury, a discovery of the remaining private postings were likely to contain similar information. The court made this decision because the man had profile pictures of himself on Facebook and MySpace. In one of the pictures, he is shown wearing shorts that happened to expose a scar from his accident.

In the New York case of Romano v. Steelcase Inc., a judge entitled defense attorneys access to the private MySpace and Facebook pages of a plaintiff who claimed to be confined to her home because of her injuries. The profile picture on one of her social media accounts depicted her standing outdoors. The court decided that because the public portions of her social networking accounts contained evidence that was contradictory to her claims, the private portions of her accounts would likely yield additional contradictory evidence. The profile picture could have been months or years before the accident. The defense pushed the idea that the woman maintained an active lifestyle, and she was not seriously injured.

Personal injury lawyers are concerned about the recent court rulings. Old pictures and statements can be misunderstood as current or relevant to a court case. Even if someone were to remove a picture from their social media account, it can still be used against them in court. Clients should understand that defense attorneys will stop at nothing in order to defeat personal injury claims. Even when the pictures fail to prove a claimant has been dishonest about their injuries, they can still be used in an attempt to mar their character.

Information from social media sites can cause juries to make value judgments on plaintiffs. For instance, a picture that shows a plaintiff drinking and partying is a common tactic to sway a jury. Once the jury sees the picture, they tend to award the plaintiff less money. Due to the public profiles of many of their clients, Los Angeles personal injury attorney's have long been cognizant of the risks of poor public exposure during trial. While this isn't news for any personal injury attorney, the proliferation of social media information has increased the risk of accidental self-incrimination (or apparent incrimination).

Although the law is still evolving in this area, making any public communication about health or injuries is a mistake when proceeding with a personal injury claim. The information gleaned from social media websites can cause substantial harm to a claimant's credibility; ultimately, it can cause them to lose their case. Until the laws surrounding personal injury and social media are clearly defined, victims of personal injury should remove their social media accounts before filing a claim for compensation.

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Social Media Can Play Important Role in Missouri Personal Injury Cases

If you are injured in a car accident or otherwise and your health insurance coverage is through a group plan with your employer (often referred to as an "ERISA" Plan), it has certain rights of recovery from your personal injury settlement for pay back of the expenses paid on your behalf for your medical care. Often these plans will try to claim 100% reimbursement (referred to as "subrogation"), however, they are usually not entitled to full reimbursement, and in some cases they are not entitled to reimbursement at all. This area of law can be very complicated, the concepts below apply generally to Illinois injury claims.

Subrogation allows the employer health insurance plan to "stand in the shoes" of the participant, in our cases the injured victim is the participant, to recover benefits paid by the plan and transfers to the plan the participant's right to recover from the at fault party and their insurer. This right to reimbursement (subrogation) is a contractual right that must be in the plan documents. Unisys Medical Plan v. Timm, 98 F.3d 971, 973 (7th Cir. 1996).

Important Issues to Consider regarding Plan's Ability to Recover:

The reimbursement language in the health insurance contract. Does it cover just medical expenses from the personal injury? Or does it cover any recovery arising from a personal injury action, such as lost wages, pain and suffering, etc ... ? This is important because if the plan's language is not broad enough it may only be able to recover from medical damages recovered. A broad plan provision for reimbursement from "any recovery relating to injury" or "any funds" creates a right of reimbursement from the participant's entire recovery, not just medical expenses. McIntosh v. Pacific Holding Co., 992 F.2d 882 (8th Cir. 1993).

Is the plan attempting to recover amounts billed or actually paid? An ERISA plan may only recover may recover only the amount it actually paid to healthcare providers, not the amounts billed, since the plan administrator must uphold its fiduciary duty to act solely in the interests of its participants. McConocha v. Blue Cross & Blue Shield of Ohio, 898 F.Supp. 545 (N.D.Ohio 1995).

COMMON FUND DOCTRINE

The most effective way to reduce the amount required to be paid back to the plan is use of the Common Fund Doctrine. "The common fund doctrine permits a party who creates, preserves, or increases the value of a fund in which others have an ownership interest to be reimbursed from this fund for litigation expenses incurred, including counsel fees." Scholtens v. Schneider, 173 Ill.2d 375, 671 N.E.2d 657, 662, 219 Ill.Dec. 490 (1996).

In other words, the injured victim hired a lawyer, went through the cost and expense of litigation, and therefore, the plan should share in that cost and reduce it claimed lien amount to reflect that cost.

The Illinois Supreme Court, in Scholtens v. Schneider, ruled that the the common fund doctrine applies to ERISA liens except when the ERISA plan explicitly provides otherwise. The Illinois Supreme Court interpreted both ERISA and the common fund doctrine in holding that the common fund doctrine applies to ERISA subrogation liens. The common fund doctrine provides that a subrogation claim is to be reduced for the pro rata share of the attorneys' fees and expenses incurred in creating the settlement fund. Additionally, the court rejected arguments that the Common Fund Doctrine is preempted by the ERISA law.

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Dealing with ERISA Liens When Settling Personal Injury Cases

Continue reading "Illinois ERISA Plan's Right of Recovery from Your Personal Injury Settlement " »

Medical mistakes can happen for a variety of reasons: a patient could not be properly monitored while at the hospital, there could be a communication error between nurses and doctors, staff could not be up to par on training. If all those aren't scary enough reasons, a recent study found that some surgeons may have alcohol dependency issues which impacts their ability to properly practice medicine.

According to a study that was recently published in the Archives of Surgery, out of the 7,197 surgeons who answered a survey regarding their mood, lifestyle and work, 1,112 met the criteria of a person with an alcohol dependency issue. This equates to slightly more than 15 percent of those who participated in the survey having potential alcohol abuse problems.

And while this is certainly not a huge pool of respondents to gather data from, the truth is that more than 25,000 surgeons were actually included in the survey. However, the majority chose not to answer the questions.

"Surgeons who drink more heavily are potentially less likely to respond, which might underestimate the prevalence of alcohol abuse," according to one professor of surgery and a member of the Journal of the American Medical Association who wrote an editorial to accompany the published study.

While the lead author of the study did take time to note that it is still very rare for a person to be injured due to a surgeon being intoxicated, an earlier study that was published in April found a connection between excessive drinking and medical errors.

That earlier study looked at eight surgeons and 16 medical students and found that those who were hung-over from a previous night of drinking made 19 errors on a virtual reality procedure conducted in a safe lab setting. Those who did not consume alcohol the previous night only made eight errors on the virtual reality procedure.

If a doctor does something that is not in accordance with the requisite standard of care then that doctor has engaged in medical malpractice. If you or some you know has become sick or injured because of a doctor falling below the required standard of care, you need the help of a St. Louis injury attorney experienced in medical malpractice to help protect your rights and recover damages for your injury. Contact med mal attorney Ben Sansone today for a free initial consultation at (314) 863-0500.

Source: "Survey Reveals that 15% of Surgeons have Alcohol Dependency," by Christine Hsu, published at MedicalDaily.com.

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For many, the idea of a child being injured due to a defective or dangerous product is obviously devastating. But sadly, the truth is that there are a number of products - including children's toys, bedding and car seats - that are recalled every year due to safety issues. However, what is truly frightening is that many parents may never even hear of the recall and then continue to use the dangerous product.

About 40% of recalls last year, or 121 of 310 overall, involved children's products, according to a recent study titled "Kids In Danger." The same study notes two recalls of bunk beds and infant video monitors involved deaths. The Consumer Product Safety Commission's (CPSC) complaint database includes many reports of children injured or killed by recalled products, says Kids In Danger's Nancy Cowles.

According to the recently released Kids in Danger report, there was actually a decline in the number of recalls in 2011. However, even though there was a 24 percent decrease, injuries and other negative incidents actually rose 7 percent last year.

It turns out that part of the problem is most likely due to the fact that when a recall is announced, only between 15 percent and 30 percent of the products are actually sent back or fixed. Of course, there are some rather larger higher-profile recalls that make the news and end up having a larger send back rate, but many smaller recalls do not end up getting as much attention.

Additionally, it seems part of the problem is that when there is a recall, stores have a hard time always tracking down the purchaser to let them known about. Disturbingly the average recall response rate for child safety seats is only about 41%, while about 75% of owners of cars and light trucks take their cars back for recalls, says data and analysis firm Lindsey Research Services. Car recalls are bolstered by mandatory registration while retail recalls suffer from not being able to locate shoppers. The ability to find someone depends on whether they paid with a card or whether they have a customer loyalty account. Online retailers often have the easiest time contacting consumers.

Members of loyalty programs at Toys R Us and Babies R Us get e-mail alerts about product recalls; others can sign up on the stores' websites to get notices. Amazon and Costco notify customers when products they buy online are recalled. Those not members of such programs can take action and sign up for recall notices on CPSC's and NHTSAs websites.

If you or someone you know has been injured because of a company's failure to provide a safe and healthy consumer product, you need the help of a St. Louis products liability attorney experienced and ready to help protect your rights and recover damages for your injury. Contact products liability attorney Ben Sansone today for a free initial consultation at (314) 863-0500.

Source: "Recalls of unsafe kids products down but often ignored," by Jayne O'Donnell, published at USAToday.com.

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Recently we settled a negligent hydraulic hose repair and thumb injury case pending in Perry County Missouri. The thumb injury occurred as the result of a hydraulic tractor hose that sprung a small leak and shot a very thin and strong stream of hydraulic fluid into my client's thumb. Hydraulic oil injection injuries are deceiving because the injury seems minor at first, however, the hydraulic oil is very toxic and quickly causes injury to spread.

A hydraulic fluid injection injury is probably the most dangerous injury that can result from a hydraulic hose failure. Mainly because the injury appears benign at first, so the injured person often dismisses it and no urgent medical care is sought. Injected hydraulic oil is highly toxic, so in addition to the physical, and often appearing minor, physical cut, the oil literally poisons you.

The most important things to remember: NEVER touch a pressurized hose with your hand and if you suspect an injection injury has occured, get to an emergency room right away!

In our case, the victim was the owner of a tractor. One of the tractor's hydraulic hoses became frayed near the end of the hose. The metal mesh under-layer began to show through the thick rubber outer-layer. The owner became concerned about the integrity of the hose and took it to the local hardware store for replacement. While at the hardware store they told him they could repair the hose rather than replace it, they would cut the frayed part off and reattach the hose connector at the end. The repair was made, however, a few inches of the hose still showed some metal coming through; the hardware store employee insisted it was safe and blew into it using his mouth to show no air was leaking through.

The owner reattached the hydraulic hose and within minutes a very strong and needle thin stream of hydraulic fluid came from the frayed area and shot into the owner's thumb.

The hardware store was liable as they represented themselves as a competent and professional hydraulic hose repair and/or replacement shop. The tractor owner relied on the employee's guarantee that the repair was done correctly, despite his concern.

This was a very unique case as hydraulic injuries resulting on negligent repair are very rare and there is little industry literature or material addressing how hydraulic hoses must be repaired. Therefore, the legal theory was a general negligence claim, no established standards or rules were violated, just what we claimed to be general negligence by the hardware store through its employee.

Continue reading "$250,000.00 Settlement: Hydraulic Fluid Injection Injury resulting from Negligent Hose Repair " »

As a St Louis injury lawyer and cyclist, I have written several articles about about bicycling injuries and Missouri law as well as bicycle safety in Missouri. Through participation with several Missouri organisations we keep and eye on developing law in Missouri and across the country related to cyclist safety.

Just this week, a new law went into effect in Pennsylvania requiring drivers to leave at least a 4 foot buffer when passing cyclists. Clearly such a law is met with a flurry of conflicting opinions from fairness to enforceability. To me, regardless of the enforcement problems, it is an important law to have for public policy reasons, it is a reminder to drivers to give cyclists a much room as reasonably possible. OF course there are situations where a 4 foot buffer is not available because a road may be narrow or other conditions, well in that case the driver should give as much room as reasonably possible. My drive home everyday is down Clayton road and a stretch of it that is very popular with cyclists in St Louis. Most drivers give cyclists plenty of room when passing, however, I often see drivers just barely giving enough room, either out of negligence or spite, in either even it is dangerous.

In situations involving car versus bike collisions violation of the law can be helpful evidence and used to prove negligence or liability on behalf of the driver that struck the cyclist. Currently, Missouri's law states that a vehicle must maintain a "safe distance" when passing a bike. Missouri version of the law states:

"The operator of a motor vehicle overtaking a bicycle proceeding in the same direction on the roadway, as defined in section 300.010, RSMo, shall leave a safe distance when passing the bicycle, and shall maintain clearance until safely past the overtaken bicycle."

See St Louis Missouri Bike Lawyer Artilce "Missouri bike accident case settles for three times the amount of medical bills" Quoting Missouri Statute 304.678.

I have used this law in several bike accident cases to support the biker's case that the driver was at fault for passing too close to the bike. Is it true the 4 foot buffer will be difficult to enforce, yes, but that does not mean it should not be a law. It is a another State taking a positive step toward recognizing bicyclist safety is an important issue that must be enforced.

Continue reading "Driver's Required to Keep 4 Foot "Buffer" when Passing Bikes " »

In an earlier blog post, we discussed the Missouri work comp Second Injury Fund, a state program that encourages employers to hire people with pre-existing conditions and disabilities. The employer pays into the fund at a flat rate and, should an employee suffer a "second injury" on the job, the fund will help cover the costs. When these first funds started after World War II, they helped maimed returning veterans obtain jobs. As the decades passed, the fund was used to compensate injured workers in Missouri who came about their disabilities in a non-military context. Unfortunately, recent times have depleted these funds, leaving them on the brink of insolvency.

Last week's Wall Street Journal discussed how several states are facing shortfalls in their Second Injury funds. Twenty states have already shut down these funds and more are at the brink of insolvency. Even New York State, the first state to create a Second Injury Fund, ceased accepting new claims in July 2010. Use of the funds by veterans from the wars in Iraq and Afghanistan have only pushed these funds faster into insolvency, which is ironic considering that the Second Injury funds were initially created specifically to benefit veterans.

Second Injury funds encourage employers to hire disabled workers by limiting their financial liability. Typically, when a worker gets injured on the job he is compensated by his employers' workers' compensation insurance. Rates that employers pay vary based on the risk associated with the job. But for the Second Injury Fund, employers pay a flat rate. Therefore, payment out of the Second Injury Fund could be less costly than the cost of increased workers comp premiums for employers. This incentive to use the Second Injury Fund to pay out claims have left many states struggling with shortfalls.

Unfortunately, Missouri's Second Injury Fund is one of those the Wall Street Journal singles out as being on the brink of insolvency. Last year, the fund received $43 million in payments from employers, but took on $77 million in liabilities. State Attorney General Chris Koster described the situation as "spiraling out of fiscal control." Much of the fund's troubles can be traced back to a 2005 law that capped the Second Injury surcharge on workers' compensation premiums at 3%. Currently, there is support to raise the surcharge cap to 4.5% or 6%, but that may not be enough to save the Fund. Many of the businesses that supported the 3% cap back in 2005 are the ones campaigning for an increased surcharge now.

With resources becoming even scarcer, it becomes vital that you have an advocate who can navigate the legal pitfalls. An experienced Missouri Work Comp attorney will provide you with the representation you need to fight for the benefits you deserve. Please contact Sansone/Lauber today for a free initial consultation at (314) 863-0500.

Source: "State disability funds going broke, and going away" by The Associated Press, published at WSJ.com.

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As the Baby Boomer generation continues to age, one thing is certain--the roads will be increasingly filled with older drivers. Currently, thirteen percent, or 34 million Americans, are over sixty-five years of age. That number is expected to increase by 60% over the next fifteen years. Based on these numbers, it is projected that one in five drivers will be 65 or older by 2025.

While the older drivers may have more experience on the road, they are also responsible for a disproportionate number of accidents. A report released by TRIP states that although drivers over 65 account for 8% of all miles driven, they are involved in at least 17% of all reported crashes.

Missouri is high middle-of-the-pack in multiple statistical categories pertaining to older drivers. (See "Missouri's Oldest Drivers Causing More Than Their Fair Share Of Accidents") The state is eleventh in the nation in raw number of older drivers killed in car accidents and twelfth in the number of accidents involving at least one driver over the age of 65. Missouri is ranked seventeenth in the nation for number of older licensed drivers. Unsurprisingly, the number one state in many of these categories is Florida.

Older drivers are more susceptible to serious injury from car accidents for a number of reasons. First, age comes with increased physical frailty and related medical issues. These issues include slower reaction time, poorer eyesight, and reduced muscle dexterity. Furthermore, when such accidents happen, injuries tend to be more severe due to this increased frailty. TRIP singles out "safely moving through intersections" as especially hazardous for older drivers.

Despite these numbers, no one is suggesting that we revoke the licenses of all older drivers. One of the major determining factors in quality of life is mobility and to deny that to an ever-increasing proportion of the population could only lead to trouble. Rather, it is being suggested that steps be taken to make the roads safer for older drivers. Some of the more prominent suggestions include clearer signs with larger lettering, increased width of pavement markings, widening lanes, and brighter lighting.

In addition to making the roads easier for older drivers to use, the TRIP report has recommended the expansion of public transportation and "non-traditional and public sector approaches that are tailored to the needs of older adults." Such non-traditional approaches include carpools, volunteer driving programs, and door-to-door community transportation services.

Currently, Missouri has no special provisions for older drivers, such as renewals contingent on vision tests. The only extra burden an older driver would have is that he would have to get his licensed renewed every three years rather than the every six years required for drivers aged 21-69. Compare this to Illinois, which requires all renewal applicants over the age of seventy-five to take a road test.

We at Sansone/Lauber encourage older drivers to use their honest best judgment to determine if they are still capable of navigating the road. As experienced St. Louis car accident lawyers, we have seen many accidents caused or exacerbated by factors related to the age of the driver. For information on how to protect your legal rights if you or a loved one has been seriously injured, call one of our Missouri car accident attorneys today at (314) 863-0500.

Source: "Missouri's Oldest Drivers Causing More Than Their Fair Share Of Accidents," by Allison Blood, published at StLouis.CBSLocal.com.

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As a Missouri personal injury attorney handling auto accidents, one of the standard documents we work with is the police report. While we often note that they can be biased against the victim (especially in the case of bicycle accidents), they are still asked for by insurance companies to determine payouts and are typically evidence if a case goes to trial. However, if you are unfortunate enough to get into an accident in some parts of Missouri, you may not receive police report because it will never be created.

Missouri law requires that for all accidents on public roads that either result in injury or apparent property damage great than $500, law enforcement officials must submit a report to the Missouri State Highway Patrol superintendent. Certain branches of law enforcement, such as the state troopers, will generate a report for every accident, no exceptions. For others, such as the local Columbia Police Department, whether a report is generated depends on the nature of the damage caused.

Back in 2009, the city of Columbia implemented a policy that allows officers to "clear" a 911 call, i.e. respond to an accident without generating a report, if a) there were no injuries and b) no need for a tow truck. The amount of damage sustained by a vehicle is irrelevant. The goal of the change was to reduce the workload of officers; generating these reports take two and a half to three hours according to Columbia Police Chief Ken Burton. Since this policy went into effect, traffic citations have been reduced 48%.

Burton also indicated during a February 6 city council meeting that similar paperwork reduction strategies are being used in the Kansas City and St. Louis areas.

By not generating a police report and issuing a citation, it is as if the accident never happened. It won't become an entry for the Statewide Traffic Accidents Record System, and the driver will not receive points on his license. The justification for this procedure is that many who are in this minor collision already choose to circumvent insurance companies anyway. Drivers in single car accidents caused by running through red lights or going into a ditch typically just call friends and solve the problem without making reports to anyone. Drivers who get into minor collisions with other drivers typically negotiate what repairs would cost on the spot and agree not to involve the police or insurance companies.

Should the victim of an accident choose to involve his insurance company in one of these no-injury, no-tow accidents, records are much more scant. There is a record of the 911 call made that led to the dispatch of an officer, but no record investigating the accident. Insurance companies must then gather their own evidence and make the best possible decision based on their findings. One thing insurance companies recommend doing in cases where there is no police report is to make an in person "walk-in" verbal report at the police department so that there is at least some record of the accident made close to the time it occurred.

As experienced Missouri personal injury attorneys, those of us at Sansone/Lauber emphasize the importance of having as full a record as possible of the accident. If you have been injured in a car accident contact us today at (314) 863-0500 for a free consultation.

Source: "Police Department's no-report accident policy reduces tickets, raises concerns," by Bobby Watson, published at ColumbiaMissourian.com.

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