Missouri Injury Law Blog

Preventable Medical Errors are one of the leading causes of death in the United States. Medical malpractice lawyers have been sounding this alarm for years and been fighting this safety risk through the civil justice system. The fact that medical errors are so rampant has not been claimed by just injury lawyers, but also by the Institute of Medicine, which is the health division of the National Academy of Sciences. The Institute of Medicine has found that since 1999, "Preventable Medical Errors" are a leading cause of death in America, more people die from "preventable medical errors" than from breast cancer, traffic accidents, and AIDs, all combined. See: Missouri University School of Medicine Article:

"More than a decade ago, an Institute of Medicine study revealed that preventable medical errors were a leading cause of death, accounting for more fatalities than breast cancer, traffic accidents or AIDS in the United States. Today, the problem of medical errors remains and might even have escalated."

One of the most common preventable medical errors are patient falls in hospitals, typically due to inadequate fall risk assessment and fall prevention practices. Additionally, many surgical mistakes and emergency room mistakes and injuries are the result of bad communication and teamwork between the doctors, nurses, and other staff present in the operating room.

As a St Louis medical malpractice attorney, I hear stories almost daily from clients and patients about negligent care in the hospital. Admittedly, some people are just upset about bad bedside manner and not actual negligence, however, many people have been neglected and errors routinely occur. Many times the errors are from the doctors or nurses simply choosing not to pay close enough attention to what they are doing, or rushing through their jobs at the expense of patient safety.

Another typical cause of preventable mistakes, are doctors doing surgeries they have not been adequately trained to do or simply do not have the pedigree to perform. Such as lap-choli malpractice cases, unqualified surgeons get away with substandard surgical techniques for a while, but as soon as a minor complication comes along, such as atypical but known anatomy differences, they end up cutting the wrong duct or artery and cause real harm or even death.

To help curb preventable errors, some medical schools are finally putting a heavy focus on Quality and Safety through actual safety curriculum and classes that address the underlying issues for medical errors and help teach the techniques to prevent these medical errors.

"Our findings from this study and others indicate that every academic health system should have a critical mass of physicians who can perform and teach others about how to improve quality and safety," said Headrick, who leads the Association of American Medical Colleges' Teaching for Quality initiative. "Ultimately, our efforts should focus on ensuring that physicians become proficient in quality improvement to advance on their career paths."

Unfortunately, contrary to many new sources, the vast majority of medical malpractice cases that go to trial are lost because the jurors feel sympathy towards a doctor or make the decision based on political arguments often heard, such as, rising insurance rates, running doctors out of the state, etc .. all of which are untrue. See Medical Malpractice Myth Debunked by Harvard. Healthcare providers are no different than other people, some are good, some are bad, some chose to cut corners, some have days where they don't pay attention and days when they do very well. Just like many people driving cars on the road do not mean to get into accidents or hurt anyone, yet juries hold them responsible because they chose to text while driving, they chose to try to beat the light, or other things that lead to car crashes. The defense of "known complication" does not work because we all know it is a "known complication" of driving that we could be involved in an accident, just because it is a known risk should not let a negligent driver (or healthcare provider) off the hook. The civil justice system and holding healthcare providers accountable for their mistakes will force them to do better and reduce the number of errors, thus improving patient safety for everyone.

Oxygen Breaths New Life into Neurons!

Traumatic brain injury suffered as the result of a car accident can have devastating effects on the brain. For many brain injuries there is no available treatment for the genesis of the injury itself, just treatment of the symptoms. Just like the common cold, medical science does not have a cure, only treatment of the symptoms through medication.

Head injuries effect the neurons in the brain, sometimes the neurons are affected by metabolic dysfunction, meaning they have the energy to stay alive but not enough energy to function by generating the electric signals that the brain uses to work. Neurologists know that the brain uses about 20% of the bodies oxygen, however this is not enough oxygen to support all neurons at one time, only about 10% of the brains neurons are working at any one time. Brain cell regeneration requires much more oxygen to stimulate the healing of a brain injury. Therefore, HBOT (Hyperbaric Oxygen Therapy) forces more oxygen into the brain by ten times the normal amount which assists in brain cell regeneration and giving the brain cells energy to fire off electric signals needed for normal brain function.

"Analysis of brain imaging showed significantly increased neuronal activity after a two-month period of HBOT treatment compared to control periods of non-treatment, reported Dr. Efrati in PLoS ONE. Patients experienced improvements such as a reversal of paralysis, increased sensation, and renewed use of language. These changes can make a world of difference in daily life, helping patients recover their independence and complete tasks such as bathing, cooking, climbing stairs, or reading a book." Oxygen chamber can boost brain repair years after stroke or trauma from American Friends of Tel Aviv University, January 23, 2013.

For many years the only healing of brain injuries was time. Medical science could offer treatment of the symptoms but not the underlying physical injury to the brain cells. Oxygen therapy is very exciting for traumatic brain injury victims as it appears to jump-start the healing process, even many years after the original head injury.

May of our clients who have suffered brain injuries form car accidents suffer symptoms for more than a year, and typically, if a head injury symptom last more than one year it is probably permanent and not going to be healed by time. In the past the headaches, dizziness, and other long term symptoms of post-concussion syndrome have only been treatable through prescriptions which do not heal the injury itself. HBOT oxygen therapy is new and probably a few years off from availability to most traumatic brain injury victims. Like all new medical treatment and technology, it will eventually become more available and hopefully help some victims of head injury.

Brain injury law is a very specialized area that requires an injury attorney to have a good understanding of the ins and outs of traumatic brain injuries and the long term effects of these injuries on their clients. It is important for a lawyer to know how to explain to a jury through doctors and medical literature the effects of these injuries. It is so important in these cases because most people with brain injuries "look normal". A jury will see you during trial for several days or even weeks, you will "look normal" to them and they may think, "he looks fine, he can't be hurt that bad." Proving a broken bone is court is easy, the x-ray shows it; but brain injuries usually do not have evidence that can be seen on a x-ray, MRI, or CT image.

Hurt in a accident and need a brain injury lawyer? Call us today at (314) 863-0500 or contact us online to set up a free consultation at our office or a location more convenient for you. Also see our client reviews - 5 of 5 stars!

Many of us have heard of someone that walks away from a severe car crash without a scratch, and as a car accident attorney, I also know many people that are in accidents that are not so severe yet end up with persistent pain and significant injuries.

Why is it that some people are hurt worse than others in similar impacts? That is a complex question with many answers. Much of it has to do with the mechanics of the impact, angle, speed, weight of the cars, height of the different cars, shock absorption of the car's frame, etc. Additionally, some people are more susceptible to injury than others. In my experience when someone under the age of 18 is involved in a car wreck, the vast majority of the time they suffer little in the way of injury and recovery very quickly. however, their parent or an older adult in the same car suffers significant injury, such as a slipped disc in their neck or back.

There are many factors that determine the amount of injury suffered from a car crash, but a new study shows one factor may be hereditary. "[P]ain after an MVC is not solely due to tissue damage at the time of trauma, but rather may also be strongly influenced by physiologic systems involved in the body's response to the collision. These physiologic systems influence the function of nerve cells that process pain in the brain, spinal cord and body tissues." Is immediate and long-term pain after a motor vehicle collision hereditary? from the Journal of the American Society of Anesthesiologists (ASA), October 16, 2012.

The study involved more than 900 patients and included data about the severity of pain complained of at the emergency room, pain reported six weeks after the car collision, and based on the blood work taken from each patient. The study focused on dopamine receptors in the brain, particularly dopamine receptor 2 which has been shown to play a very important role in the transmission of pain. "The findings suggest dopamine pathways involving the dopamine receptor 2 contribute to the intensity of pain experienced immediately after an MVC,"

The study has identified genetic factors that put some individuals at a higher risk for persistent pain after a car accident and has concluded that persistent pain after a car crash has a biological basis.

Legal Analysis:

What does this mean to your car accident case? It can help explain why some individuals experience more pain than others from injuries. The defense in injury cases is sometimes the "malingering defense", basically that the victim is faking their injury or pain just to get money. Defense lawyers sometimes try to argue that the accident was minor so it is unlikely the pain is real. There are many ways to deal with these bogus defenses, but now genetic evidence of experiencing more pain than others may be one of them in the coming years.

As genetic testing becomes more prevalent maybe this test will be done by primary care doctors or specialist that treat clients for injuries after a car accident. I can imagine that eventually pain management specialists will have access to this genetic testing and use it to help determine why the patient is experiencing the level of pain that they are, in conjunction with their actual physical injury as well.

On personal note, I have high cholesterol and have been on medication to control it for years. Recently, at my annual physical, my doctor offered me "cardio genetic testing", I was amazed to find out they can now isolate the genes that affect cardiac disease factors and then tailor more specific treatment of my high cholesterol. I have not gotten to results yet, however, it may point my doctor and I in a diffident direction for medication and other treatment.

With genetic science becoming more and more available and affordable, I can foresee genetic testing becoming an issue in some injury cases in the future. Most likely testing to support doctor opinions about the injury, how it was caused, and the likely continuing effects of that injury on the victim.

Continue reading "Pain From a Car Accident is More Severe Based on Genetic Factors " »

This is a guest author post that has been reviewed by our staff and approved since it is relevant and beneficial to safe bicycling. As a law office that handles many bike accident injury cases in Missouri and Illinois, we see bike safety as a very important issue. The guest post begins below:

People ride bicycle for many reasons, some use it for travel, some for sports, some for hobby, and there are even some who utilize this amazing two-wheel drive for business. Bicycles existence have lasted for centuries, but its popularity never ceased. It can be primarily due to its usefulness and practicality that sometimes cannot be equaled by other modern vehicles. Moreover, its basic and simple design compared to other transportation mean, has never been a hindrance for bicycles to thrive and stay as they are no matter how plenty of innovations in vehicles have evolved.

Riding bicycles come with plenty of advantages; it does not let out polluting smoke that place the environment in danger, it saves the economy from fuel dependence, it is a cost-efficient drive that can make the biker save transportation budget, and lastly, it benefits the health.

Nowadays, many Americans are supporting creation of communities that promote safety for people who choose to walk or ride their bikes. However, like any other vehicle, bicycles are also subject to laws--laws which are created to protect the pedestrians' interest as well as to let bikers be responsible in their riding. The way bicyclist manipulate their bikes, may it be motorized or not, can make a big difference in the way they ensure the safety of people around a town.

For self-help reasons, below are simplified explanation of "Missouri State Statutes Regarding Bicyclists" so that bikers can follow the law for a responsible and safe bicycling.

• Every person who will ride a bicycle will be given all the right to use the road. The granting of the rights allow bicyclists to be subject to the duties applicable to other vehicle drivers. (307.188)
• Rider of bicycles and motorized bicycles are required to ride at the right side of the roadway to practice safe distance from other motorists. Squeezing past other vehicles is relatively unsafe, no matter what kind of vehicle have you tried to pass with. (307.190)
• Riding a bike in sidewalks within a business district is not allowed. (300.347)
• When a biker is riding on a sidewalk, he or she must yield the right of way to the pedestrian. When overtaking or passing a pedestrian, the biker must give an audible signal before doing so. (300.347)
• Riding a bicycle in the sidewalk while it is attached to another vehicle is prohibited. (300.347)
• Every bicycle or motorized bicycle must be equipped with brake or brakes in working order that will allow the rider to stop the bike within a safe distance of twenty-five feet at a speed of 10 miles/hour on a dry, level, and clean pavement. (307.183)
• Bicyclist who are using the roadways ½ hour before both sunset and sunrise should be equipped with lights and reflectors. This include, front lights, a rear-facing red reflector or a rear-facing red lamp, and night-vision reflective gears that can be incorporated in the riders shoes, lower leg, or crank arms. (307.185). This will ensure that the rider will remain visible under normal night riding condition.

Any person with the age of 17 years or older can receive lawful punishment from violating the Missouri statutes for biking laws. The offender may pay for a fine of five dollars or more than twenty-five dollars upon conviction. If a person under the age of 17 will violate the mandated biking laws, traffic officers may impound the bicycle/motorized bicycle for a period of no longer than five days upon issuance of the violation receipt to the minor riding the bike or to the owner.

About The Author

Jafrum International is one of the fastest growing biking apparels and motorcycle gears outlet in the US would offer quality gears for riders to be used for competitions. Racing and bicycling requires a lot of security and determination. If a racer or a biker wants to avoid injuries, the best way to do is wear safer gears to secure protection. Ride safe!

Anyone I have represented in a bicycle or motorcycle accident has significantly less injury if they were wearing a helmet. Most states require helmet use, however, some so not require it at all or only on certain age groups. See map regarding the current state of the law. In Missouri helmet use is mandatory; however, in two of its neighboring states, Iowa and Illinois, there is no helmet law in effect.

A recent study has found that education on the severity of brain injuries from post-concussion syndrome to "TBI" Traumatic Brain Injury increases bike helmet use. After many years as a bicycle accident lawyer I have seen first-hand the increased injury to a cyclists head and brain when helmet is not worn. Many people do not understand the severity and life altering effects of a brain injury; once they do, wearing a helmet is an obvious choice.

The study was conducted on children ages 5 to 18, the researchers provided bicycle helmet safety and brain injury prevention information to over 100 children patients; helmet usage went up 72.5% in the children. A local St Louis City Charity, Helmets First, advocates helmet use by children and education on the effects of head injuries. See Helmet Hustle - St Louis Bike Safety for Children All parents must provide some safety education to their children at a young age to instill helmet use. Our law firm supports the helmet hustle every year as the safety of our children is of the utmost importance. Many kids grow up in families that simply just do not understand the debilitating effects of head injuries, injuries that can occur even in low speed bike accidents and not involving a car.

Helmet education is so important as the "CDC" Centers for Disease Control, report that about 25% of children ages 5-15 wear a helmet when riding a bike, and the teenage helmet rate is near zero. As a result, about 153,000 children are treated in emergency rooms each year for head injuries suffered from bicycle accidents. If the increase in helmet use reported by the researchers is true, than the above number of children admitted to emergency rooms with significant brain injuries every year should be drastically reduced.

Experts say that helmet use reduces the risk of a brain injury by 88%. Part of the education to encourage helmet use is a great analogy of the brain and head to an egg, which is explained as follows:

The egg is the head;
The egg shell is the skull;
The egg white is the fluid surrounding your brain;
The egg yolk is your brain;
Drop and unprotected egg - that is what a brain injury is like.

Additionally, the researchers used a gelatin brain mold to show children just how soft and pliable the brain really is. Many people think the skull is thick and very protective of the brain underneath, however, brain injuries can occur in low speed accidents. In fact, brain injuries are even known to occur through centrifugal force, such as in car accidents that create a whiplash motion and injury. The flying back and forth of the brain inside the skull not only causes impact with the inside of the skull, but can also cause neuronal shearing from the force of motion created. See Concussion Lawsuits Bring Head Injury Awareness Mainstream.

Continue reading "Brain Injury Education Increases Bike Helmet Use by 72.5% " »

One of the first concerns after a car accident is deciding whether or not to go to the hospital or a doctor right away. Usually, the responding police will ask if you are injured or need medical treatment, if you are hurt tell them, even if you do not want to go to the emergency room right away. My advice, as an experienced car accident lawyer, is to get medical treatment sooner rather than later.

Should I go straight to the ER from the scene of the accident?

Obviously, if you have severe injuries you should go to the emergency room by ambulance as soon as possible. Maybe you do not want to go to the emergency room straight from the scene of the accident, usually that is ok. Many people do not go to the ER by ambulance right away because they want to make sure their car is taken care of by being towed away properly or they drive it home and then decide later or the next day if they need to go to the ER or a doctor.

Make a Doctor Appointment As Soon as Possible:

Regardless if you go to the emergency room or not, make an appointment with a family doctor after the accident or for an emergency room follow up. Most emergency room doctors will advise you to do this. If you do not have a family doctor to go see, call us, we will send you to a doctor that will take care of you either through your health insurance or agree to get paid after the case settles.

I Do Not Have Health Insurance, What Should I Do?

Go to the doctor! If you have been hurt in a car accident you must get medical treatment or risk permanent damage to your health. If you do not have health insurance we have doctors that will agree to treat you without health insurance. We have a network of Missouri doctors that trust us when we send them clients and assure them they will eventually get paid from a car accident settlement. Additionally, many of these doctors will agree that if you lose your case (which we never have!) that you then do not have to pay the medical bill.

How Long Should I go to the Doctor, Physical Therapy, Etc ... ?

For the sake of your physical and mental well-being you should go until you reach "MMI" - Maximum Medical Improvement. MMI is the point where you are 100% better or as close to 100% as you are expected to get. Not only is this crucial for your recovery, but if you settle your case and then realize several months later your injury is worse than you thought, you can't reopen the case. Therefore, it is very important that your injuries have completely resolved or reached MMI before settling a case.

I Missed an Appointment, is that OK?

Missing appointments on rare occasions is to be expected with today's busy lifestyles; however, do not make a habit out of it. Multiple missed appointments can look bad, auto insurance companies and their lawyers will argue that you were not very hurt, especially since you did not make it a priority to get better when you missed several appointments.

What Should I tell the Doctor or other Healthcare Provider When I see Them?
Tell them about everything that is bothering you. Just today I met with a new client that was hurt when her car was t-boned at an intersection. She told me she has had bad headaches since the accident and has been taking aspirin for relief. I asked her if her doctor recommended anything and she advised me she did not tell her doctor, because she knew aspirin or Tylenol was really the only thing you could do.

Do not do this! Tell the doctor everything that is bothering you from the car accident, even if you do not think the doctor cannot do anything about it. Take the headache example from above, imaging that if 6 months after the accident the persistent headaches are still there, you then tell the doctor, and then lets say he diagnoses you with post -concussion syndrome. When we make the head injury claim to the insurance company or a jury, the defense can argue that the victim said nothing about the headaches to any doctors for 6 months after the accident, therefore, the claim of headaches is vulnerable to a credibility attack. They will then argue that something else later on caused the headaches and that they were not caused by the car accident because they were not disclosed to the doctor.

If you are hurt in a car accident the most important things to do are:

1. Call the police;
2. Seek medical treatment;
3. Call a car accident lawyer.

If your car ever breaks down please be sure to get it off the side of the road as much as possible. Even with hazard lights, road flares, or strobe lights, inattentive or drunk drivers will still hit cars parked on the shoulder causing severe injuries or even death. As an accomplished injury lawyer, I have handled dozens of cases involving pedestrians hit by passing cars. In my experience, these types of accidents usually happen between 10:00 p.m. and midnight; especially on the weekends. I think for obvious reasons, since this is the time of day that more drivers are intoxicated or under the influence of drugs, thus impairing their ability to see stranded motorists on the side of he road.

Currently, our law firm is handling one such case that resulted in the tragic death of a father of four children. See Wrongful Death Lawsuit - Lewis County, MO. Despite taking safety measures, a man was killed on the side of the highway. Cortez Robinson's car broke down late at night in December 2012, he moved the car off the road as far as possible onto the shoulder, turned the hazards on, and was standing outside near the car. This stretch of Highway 6, about 2 miles West of Lewistown, Missouri, is straight and visibility is good. Despite his hazard lights being on and good visibility, a driver passing by struck the vehicle and Mr. Robinson, killing him and severely injuring another pedestrian by forcing the car into her body. See Article in Kirksville Missouri Daily Express: KV man killed in Lewis County crash. Additionally, the preliminary crash report from the Missouri Highway Patrol is available here.

As mentioned above, our law firm is representing the four surviving children ages 1 to 8. We believe the driver was negligent and at fault for by not keeping a proper lookout, even if the disabled car was partially in the westbound lane, she still should have seen it in plenty of time to avoid the collision with a parked car. It is foreseeable on the roadway that other vehicles may break down or pull over to the side for whatever reason. I am sure we have all encountered vehicles pulled over on the road while driving down the highway, most of us do the responsible thing of first paying attention enough to see the car and then move our vehicles away form the shoulder to give the vehicle and the people in or around it as much room as reasonably possible.

Since the children whose father was killed in the wrongful death accident are all minors, the case is still brought in their name, however, the court must appoint a "next friend" to make decisions on behalf of the minors. Typically, the "next friend" is a parent or guardian, usually the natural mother or father. In this case, we have asked the court to appoint the natural mother of the children as the "next friend". This is a formality to protect the minor children. Additionally, to also protect the minor children, any settlement involving a car crash death and minor children must be approved by the court. The court will assure that the judgment or settlement money goes to the benefit of the minors and put in a protective account that will benefit the children and prevent the parents or other adults from squandering the assets. This is referred to a minor settlement approval hearing.

Related Blog Posts:

Pedestrian Deaths on the Rise

St. Louis Child Dead and Another Injured After Hit-and-Run

Multiple Deaths in Illinois Bus Accident

Continue reading "Lewis County Missouri - Wrongful Death Car Accident involving Stranded Motorist on Side of Highway 6" »

Under Missouri personal injury law, asking the jury to "send a message" with their verdict is generally reserved for punitive damage cases and typically not allowed in cases where compensatory damages are the only damages sought. Most personal injury cases are compensatory damage cases; most car accident lawsuits do not alleged punitive damages, unless the driver was drunk or did some sort of other reprehensible or intentional act. So can a good Missouri trial lawyer ask the jury in closing argument to "send a message' if punitive damages are not an issue? Maybe, depending on the judge, and then it must be done correctly and carefully.

First, the judge must allow it and not sustain an objection by the defense, or even grant a mistrial because the judge feels the reference to sending a message is so prejudicial that it ruins the jury's ability to properly determine a verdict. The objection is a likely scenario and different judges will rule differently on the issue. The mistrial is and extreme reaction to the argument, however, it can happen.

Generally, Missouri courts have left it in the discretion of the trial court judge to what extent "send a message" arguments can be allowed, ruling that it has been ok in some cases because it was not prejudicial or that an objection and curative instruction corrected any potential error or prejudice. "Given the cold record on appeal, appellate courts of this state uniformly uphold trial courts' determinations of the prejudice injected by "send a message" arguments." Pierce v. Platte-Clay Electric Cooperative, Inc., 769 S.W.2d 769 (Mo 1989).

It appears it is not reversible error in compensatory damage cases if (1) the injury lawyer argues the message to be sent by the verdict is to be sent just the Defendant, and (2) the plaintiff's counsel is clear that they are asking for damages supported by the evidence. Limiting the message being sent to just the defendant avoids the argument of deterrent effect to others (reserved for punitive damage claims) and by referring to only the damages supported by the evidence a good attorney avoids the argument that they are asking for punitive damages, since they are only asking for damages supported by the evidence, not additional damages for deterrence, which is punitive in nature.

The two issues discussed above for not crossing the line into punitive damage arguments are discussed in Dickerson v. St Louis Southwestern Railway Company, 674 S.W. 2d 165 (Mo Ct App ED 1984). In this case, during the closing arguments the Missouri accident attorney stated, when referring to the verdict:

"It is going to be heard by this railroad all of the way out to the home office in San Francisco, and I ask you to make it for an amount that's proven by the evidence that we've talked about that they'll hear about loud and clear for all times.

But I ask you to make it as generous as you possibly can and let them know when you come back down here, "Mr. Railroad, we have done our job. Here is the price tag."

The defense lawyer objected to the argument and the trial court overruled the objection, meaning they allowed the closing argument. The defendant lost the trial and they appealed the case, in part claiming the arguments above were improper "send a message" arguments that are reserved for punitive damage cases. The Eastern District Appeals Court upheld the trial court's ruling, thus agreeing that the argument was permissible, because:

1. Trial court has broad discretion in ruling on propriety of jury argument
2. The argument does not expressly request the jury to punish the defendant
3. Plaintiff limited his damages request to "an amount proven by the evidence"
4. Plaintiff limited his message to be sent to defendant's corporate headquarters
5. Plaintiff did NOT refer to the deterrent effect the verdict might have on others.

Additionally, the best Missouri injury lawyers know not to make the "Send a message" argument the theme of their closing, they state it and move on. "When the send a message argument becomes the theme of the entire closing, it constitutes reversible error." Smith v. Courter, M.D., 531 S.W.2d 743 (Mo 1973).

The Courts have also allowed defense lawyers to argue to a jury to reject the plaintiff's claim and in doing so send a message to society that litigation is too common and must be deterred. In the case of Beis v Dias, 859 SW2d 835 (Mo 1993), send a message was argued by the defense to send a message to a litigious society not to sue doctors for complications that are accepted risks of the surgery.

Defense argument to jury:

"[Y]ou have a golden opportunity here to help correct one of the most litigious societies--the most litigious society in the world. You have an opportunity--

(objection - overruled)

"You have an opportunity here to take the burden off of Dr. Dias's back and place it where it belongs. These people should not recover any money whatsoever. We cannot encourage this type of activity. Folks, look, I don't deny and I've never tried to deny and I told you this up front, that she had complications develop as a result of the surgery. But they are accepted risks of the surgery. They are known risks of this surgery and unfortunately, it happened to this lady. But we are here to determine whether or not Dr. Dias in any way was negligent. Did he fall below an acceptable standard of care with reference to his treatment, his care, his surgery of this woman?"

1. It was not the ongoing theme of defendant's closing;
2. After objection defense counsel moved from the argument even though the objection was overruled;
3. Again holding that the trial court has "superior opportunity to appraise the impact of the argument to the jury, we accord the trial court broad discretion in this area of closing argument"

I personally disagree with the court's ruling in this situation, as the defense lawyer was improperly asking the jury not to determine their verdict based on the evidence, but was asking them to send a message to society about the dislike for medical malpractice lawsuits. He was not asking for punitive damages in the form of a money verdict, but a sort of punitive damages by a defense verdict and that would send a message to society.

The case law really comes down to the fact that the trial court has discretion to make these decisions and that the court of appeals will not tamper with that decision unless their is abuse of discretion by allowing very improper arguments to be made. So depending on the judge, a good lawyer may be able to argue "send a message", and if they keep it within the parameters discussed above, the court of appeals should not second guess it.

Continue reading "Missouri Law on "Send a Message" Arguments to a Jury in Non-Puntive Damages Cases" »

What is an "Owned Vehicle Exclusion"? First you need to understand that UM coverage and UIM coverage are the type of coverage that follows the insured person, not the vehcile if they are hurt by a negligence driver with either no insurance (uninsured motorist or "UM") or with little insurance (under-insured motorist or "UIM"). For discussion about different types of auto insurance liability coverage in Missouri see: Uninsured and Under-insured Motorist Coverage - Breaking Down Car Insurance Coverage in Missouri. The "owned vehicle exclusion" tries to say if you are injured while operating a vehicle not included on the insurance company's policy you have with them that includes UIM or UM coverege, then they claim the UM or UIM coverage does not cover you because you were operating a vehicle not covered by them.

In a Missouri Supreme Court opinion just issued January 8, 2013, the Missouri Supreme Court overturned the trial court holding that the injured victim in a St Charles motorcycle crash has insurance limits of $400,000 available under his under-insured ("UIM") motorist coverage because he has separate UIM policies on 4 different vehicles and the four separate $100,000 UIM coverage policies "stack" to equal a total of $400,000 in available UIM insurance coverage for the motorcycle accident injuries. Additionally, holding that the "owned vehicle exclusion" under the policies did not apply to deny coverage of the UIM amounts. See Missouri Supreme Court Opinion in Manner v. Schiermeier, SC # SC92408 issued 1/8/2013.

The trial Judge in St Charles County and the Eastern District Court of Appeals both denied the coverage to the injured victim holding that the UIM policies were not recoverable under the "owned vehicle exclusion". These owned-vehicle exclusions state: "This coverage does not apply for bodily injury to a person: ... While occupying, or when struck by, a motor vehicle that is not insured under this policy if it is owned by you or any resident of your household.". The insurance company claimed that the injured cyclist owned the motorcycle he was riding when hurt and that, because it was insured under a different policy than the ones insuring the other three vehicles, this owned-vehicle exclusion precluded coverage under those policies.

This case turned on very specific facts and the Supreme Court's view that the insurance company did not prove ownership and that the policy's definition of ownership was vague and ambiguous, therefore, any ambiguity is construed in favor of the insured and against the insurance company. In this case the victim had partially paid his uncle for the motorcycle and was in possession of it, however, he did not have title to the bike and had not paid it off, therefore, it was argued that he did not "own" the motorcycle. "Ownership" was not defined by the insurance policy, so the court leaned to the injured motorcycle rider when interpreting the policy provisions that were vague.

The St Charles motorcycle lawyers that handled this case did an excellent job getting the maximum recovery for their client. This is an example of why it is so important to hire good lawyers to navigate your way through an injury claim or lawsuit. Having a Missouri personal injury attorney in this case meant the difference between $100,000 recovery and a $400,000 recovery.

If you have been hurt, call us, (314) 863-0500 or contact us online.

Recently we settled a Missouri auto accident case that was caused by a distracted driver with allegations of drug use. We represented the passenger that was injured after the driver lost control of the pickup truck and ran off the road.

But the driver did not have his own auto insurance; Permissive Use?

The driver was the passenger's "friend" and did not have his own auto insurance to cover the injuries sustained by the passenger. However, the car he was driving was not owned by him but was owned by the passenger's grandfather. The grandson had permission to drive the car and let his friend drive. Therefore, under Missouri insurance law, the grandfather's insurance policy covers the at fault driver because the negligent driver is what is considered a permissive use driver. So the coverage purchased by the owner of the car is available for the injured passenger to collect from for his injuries that were caused by the negligence of the "permissive use" driver. Permissive use coverage is diffident than liability for negligent entrustment. For discussion about negligent entrustment see: Illinois Drunk Driving Car Crash - Negligent Entrustment.

See State Farm Mut. Auto Ins. Co. v. Scheel, 973 S.W.2d 560 (Ct App WD 1998) stating:

The requirement of "permissive use" of a motor vehicle in an omnibus or non-owned vehicle clause of an automobile insurance policy to limit liability coverage is a question of fact which may be satisfied by a showing of either express or implied permission. State Farm Fire & Cas. Co. v. Ricks, 902 S.W.2d 323, 324 (Ct App ED 1995)

What if the Driver has his own insurance and the car owner has insurance?

In the same case above, assuming the driver had his own insurance as well, there may be additional insurance coverage for the hurt car crash passenger. Both insurance policies may apply, but it depends on the amount of coverage under each policy and if the insurance policies have valid and enforceable "set-off" or "other insurance" clauses. a few scenarios that could occur are outlined below:

1. The Owner's and the Driver's Auto Insurance have the same coverage amounts:

If the owner and driver both have, for example, $25,000 in liability coverage then the passenger may be limited to just $25,000 total if the policies have valid and enforceable set-off or other insurance clauses. These insurance contract clauses basically say they are not liable to the extent "other insurance" covers the driver's liability. If they do not have these clauses or they are poorly written, the injured passenger may have $25,000 from each policy available, thus $50,000 in total insurance coverage.

In Missouri the case of Zemelman v. Equity Mut. Ins. Co., 935 S.W.2d 673 (Mo. App. WD 1996) discussed "set off" and "other insurance" clauses. In that case the Court read the policy's UIM "set-off" provision against the policy's "other insurance" provision and found it ambiguous because the language described the UIM as "excess over any other collectible insurance." In 2004, we successfully used the above case to avoid set-off and recover an additional $50,000 for our client injured in a St Louis car crash.

2. The Owner and Driver have Different Coverage Amounts:

If one car insurance policy has more liability coverage then that larger amount is typically available. But you still need to deal with issues of set-off. Example, policy #1 has $100,000 in coverage and policy #2 has $50,000 in coverage. A good Missouri car accident lawyer will try and pursue the full amount of each policy, or $150,000. However, many insurance companies now have enforceable set-off clauses, meaning the larger policy can set-off the smaller policy's payment of $50,000; therefore, the total amount recoverable is just the amount of the larger policy, or $100,000 in this example.

What Insurance Applies to My Case?

All cases are different and dozens of critical issues must be discussed and analyzed to ensure a maximum recovery for anyone injured in a car wreck. Insurance coverage is just one of many issues to address. Contact a good car wreck lawyer sooner rather than later. Call us for a free consultation and no fee unless we win. (314) 863-0500 or contact a lawyer online.