Missouri Injury Law Blog

Some good news for injured employees across the state of Missouri happened last week when the Senate passed a bill that would serve to bolster the state's second injury workers' compensation fund by increasing the amount employers must pay into the fund. The fund will now be replenished by having employers temporarily double the fee they must contribute.

The measure passed overwhelmingly, 32-2, and will now move on to the House. Though supporting the fund is great news, as a whole the law was a bit of a mixed bag for workers as it also included a damage cap. Sadly, should this measure go on to pass the House it will mean that some of the most seriously injured workers will not be able to bring high dollar cases against their employers. The measure also hopes to control expenses of the fund by limiting future coverage only to those workers who are permanently and totally disabled. Employees who suffered only partial disabilities would have to be covered only through traditional workers' compensation insurance policies purchased by employers.

The legislation also contains language which will clarify which occupational diseases will now be dealt with through the workers' compensation system. It would also create a benefit for those workers suffering from certain diseases caused by work-related exposures to toxins. The bill would require the Missouri Second Injury Fund to pay more than $150,000 to those workers who suffered from certain diseases while those workers dealing with the horrors of mesothelioma after a career of working with asbestos would get an enhanced benefit totaling nearly $600,000.

The second injury fund exists as a last line of defense for those workers who have been disabled on the job due to serious workplace injuries. A law passed in 2005 by Republican legislators capped the amount of money employers would pay into the fund; something that has meant the fund's resources became stretched, threatening its long-term survival. At the end of 2012, the fund was perilously close to insolvency, with a remaining balance of only $3.2 million and unpaid obligations of more than $28 million.

Currently there are 30,000 cases in a backlog that must be dealt with. Each case represents an injured worker and his or her family that desperately needs the money to survive. Thousands of workers are struggling as they wait to collect the settlements they counted on to help pay bills following serious workplace injuries. Though the new legislation contains several troubling measures, if it works to stabilize the fund and pay out settlements to the thousands of workers in desperate need of them, then it's a small step in the right direction.

As Saint Louis workers' compensation attorneys we routinely see the devastating aftermath of accidents at the workplace and worry about protections for employees being diminished. If you've been the victim of such an accident and need help navigating confusing legal waters, contact our skilled Missouri injury lawyers today.

Source: "Mo. Senate passes bill to reform Second Injury Fund," by Greta Weiderman, published at BizJournals.com/StLouis.

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Major workers' comp/whistleblower bill passes Missouri legislature

Missouri Second Injury Fund Going Broke........

The 7th Amendment to the United States Constitution guarantees an individual's right to a trial by a jury of his or her peers, meaning the people in their community. This right is very clear, yet the politicians in Missouri who always pound their chests about not infringing and the 2nd Amendment (which I absolutely agree with); have no problem trashing the 7th amendment to try to protect negligent doctors and hospitals (really insurance companies) at the expense of innocent victims and the taxpayers. That's right, the tax-payers, because when a victim is severely injured, denied compensation because of malpractice caps and tort "reform" laws, the malpractice insurance company makes more money and the victim is often forced to turn to Medicaid, Medicare or other governmental assistance. For a very clear article about this see St Louis Post Dispatch Article:
"Right to trial protects patients from negligent doctors".

Insurance companies in Missouri have gone on the offensive and are now lobbying Missouri legislators to put liability limits for medical malpractice cases in place after the Missouri Supreme Court struck down the previous cap last year. In the coming months and years you will hear, once again, all the debunked myths about doctors fleeing the state, being forced out of practice, etc... See: Tort Reform Myths

A law passed by state legislators in 2005 capped noneconomic damages in medical malpractice lawsuits at $350,000. The measure was meant to put limits on growth in medical liability lawsuits. Prior to that, the limits were $579,000 (adjusted for inflation) for non-economic damages against each defendant for each negligent act. The state Supreme Court heard a case last year on the 2005 limits and determined that the cap was unconstitutional.

The Supreme Court voted 4-3 to overturn the cap, citing Missouri's Bill of Rights which says that the then existing right to trial by jury shall remain inviolate. Given that at the time the Bill of Rights was enacted in 1820, citizens of Missouri had a right to seek damages for medical malpractice claims, the Supreme Court decided that limits on the amount of damages that would restrict a jury's fact-finding role would violate the constitutional guarantee.

Doctors have aligned with insurance companies to pressure legislators to reinstate the damages cap. They claim that the limit helped the medical community in the state by removing some of the risks associated with hugely inflated med mal verdicts. The cap helped lower medical malpractice insurance premiums and doctors claim that kept more doctors in business in the state, lower costs to consumers in the process.

The proposal before legislators would act as an end-run around the Supreme Court's decision. Lawmakers would eliminate the common-law right to sue over medical malpractice and instead create a statutory right to bring such lawsuits. By abolishing the common-law right to bring such lawsuits, the previous $350,000 cap could be put in place.

Those opposed to such a cap on damages argue vehemently that negligent doctors should not be protected from their own misconduct. Damage caps do nothing to prevent filing frivolous damage claims and only come into play once a jury has decided that a defendant was negligent and that the injured plaintiff suffered real harm. The caps only serve to protect negligent defendants from having to be totally accountable for the damage they caused. See: "Preventable Medical Errors - Leading Cause of Death in the United States"

The fact is that medical mistakes lead to the preventable deaths of 100,000 people each and every year across the country. This horrifyingly high figure places it as one of the leading causes of death in the United States. Those that are responsible for causing such extreme harm should be held responsible for the actions, not have an arbitrary cap put in place protecting them in ways their unsuspecting patients never were.

Medical negligence lawyer Ben Sansone is located in St Louis (Clayton) Missouri and handles medical negligence cases across all of Missouri and Illinois. For a free consultation please call (314) 863-0500 or contact us online.

Source: "Mo. House panel considers medical liability limits," by The Associated Press, published at KAIT8.com.

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Missouri Supreme Court - Medical Malpractice Damage Caps Unconstitutional in
Negligence Actions BUT NOT Wrongful Death Actions

One of the first things I do with new accident client is tell them to either take down their Facebook page or stop posting it as people will say or post private things on Facebook that can seriously effect a an injury claim. The same can go for doctors apparently now too!

A St. Louis, Missouri OB-GYN is in hot water after posting extremely sensitive personal information about a patient on Facebook. The doctor, Amy T. Dunbar, posted revealing information about her patient, including that the woman had suffered a stillborn birth.

Dr. Dunbar raised the ire of many women after going on Facebook to complain about a patient she said was routinely late for appointments. Dunbar posted a comment to her nearly 500 friends asking whether, given her patient's constant tardiness, she should respond by showing up late to her delivery.

The full message said: "So I have a patient who has chosen to either no-show or be late (sometimes hours) for all of her prenatal visits, ultrasound and NSTs. She is now 3 hours late for her induction. May I show up late to her delivery?" Later in the conversation thread the doctor revealed information concerning the patient's stillborn baby.

The conversation was revealed after someone posted a screenshot of the exchange on a Facebook page created for pregnant women at St. John's Mercy Medical Center, a site known as "Mercy Moms To Be." The hospital, located here in St. Louis, released a statement saying that Dunbar has not been fired and that leadership within the hospital would be discussing the matter with Dr. Dunbar. Hospital administrators say that they agree Dunbar's comments were inappropriate and will be reviewing the full statement to decide whether she violated the patient's privacy. The hospital says it will not reveal how it intends to punish Dunbar, but says it will use this as a teaching moment to educate staff about the inherent problems associated with social media, especially in the context of especially thorny medical privacy issues.

The problem of doctors violating patients' privacy by using social media is a growing one that the medical professional is starting to become aware of. A survey conducted in 2009 that was published in JAMA revealed that 60% of medical school deans said there had been incidents of med students posting unprofessional online conduct. Specifically, violations of patient confidentially were reported in 13% of such incidents.

Last year the American Medical Association released guidelines that were meant to guide doctors through appropriate use of social media. The guidance said physicians should be very careful when interacting with patients online and that doctors should follow the same strict rules regarding professionalism whether conversations are taking place online or offline. Medical ethicists are saying doctors should view posting on social networking sites in the same way they view conversations taking place hospital elevators. In either place it is strictly forbidden to discuss private cases in public.

Hospitals are taking note of the problem given that studies have shown that violating patients' privacy through social media sites can do more than result in an ethics investigation. Instead, such breaches are increasingly leading to firings and lawsuits by patients who had their privacy violated.

Medical negligence lawyer Ben Sansone is located in St Louis (Clayton) Missouri and handles medical negligence cases across all of Missouri and Illinois. For a free consultation please call (314) 863-0500 or contact us online.

Source: "Fury sparked as ob-gyn posts personal patient info on Facebook," by Lee Moran, published at NYDailyNews.com.

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Hybrid and electronic cars' relation to pedestrian and/or cycling injuries

Hybrids and electronic vehicles may not be the biggest thing in automobiles right now but they are slowly getting some steam in as far as popularity is concerned. Today, more and more celebrities are purchasing and have been going around these politically-correct statements on wheels. These celebrities are showing their own way of taking care of the environment by going around town these green machines. However, despite the many benefits that these technological wonders offer, they are being tagged as one of the major causes of pedestrian accidents involving people with disabilities

What make hybrids and electric car more dangerous for pedestrians and cyclists?

Hybrids don't rely much on the internal combustion engines to propel it in short-distance city travels or cruising. In fact, you will never (or will have a really hard time to) know if a hybrid car is near you until somebody tells you, or you get struck by it. This gets worse when you are dealing with an electronic car. Since it doesn't have an engine that burns fuel, it barely emits a sound. Because of this, blind people or those with hearing problems wouldn't really be able to do something to detect the presence of a hybrid or electric vehicles.

Blind people or people with hearing impairments have been getting involved in accidents with hybrid or electronic cars. Though the number of injuries won't really cause panic over people and various organizations, one has to acknowledge the fact that these cases should be looked into by the government, and that something should really be done to make these vehicles safer, especially to pedestrians and cyclists.

How can hybrids and electric cars be made safer for pedestrians and cyclists?

After a careful assessment of the data it has gathered, the Department of Transportation's National Highway Traffic Safety Administration (NHTSA) came up with the conclusion that hybrids and electrics should emit a sound to alert and help give a warning to motorists that a hybrid or an electric vehicle is fast approaching. This way, pedestrians and motorists alike will be more aware about the presence of such vehicles, making them ready to take the needed precautions avoiding accidents.

The sounds, as the NHTSA requires, car makers to come up with sounds that are detectable under a range of street noise and ambient background sound, when the vehicle is traveling under 18 miles per hour. If the vehicle travels at 18 miles per hour and up, the vehicle will be making sufficient noise so that pedestrians and bicyclists the vehicle must emit sounds that are enough so drivers can notice and avoid these vehicles. An automaker will then be given a range of choices for the sounds that it can choose the vehicles they will produce. The sound should have certain characteristics that meet the minimum requirements. Finally, a vehicle with the same make and model needs to emit the same sound or set of sounds.

The NHTSA's proposal

The NHTSA has already sent the proposal to the Federal Register, for finalization. After that, this measure will then be publicized where the public will be given 60 days to comment on the action by the agency. If there wouldn't be any more problems, this measure will then be implemented to upcoming models that are going to be tested by the NHTSA. These vehicles will then be required by the agency to be equipped with the above mentioned safety system. With this new measure in place, the agency estimates that there would be around 2,800 lesser pedestrian and cyclist injuries.

Soon people with disabilities, bicyclists, and the general public will reap the benefits of this newest move by the NHTSA. This way, you won't need the assistance of a car accident lawyer to help you seek for damages since you won't get into an accident anyway because you'd be able to avoid it now.

ABOUT THE AUTHOR:

Anne Roberts is a web content writer for the Mesriani Law Group, a professional law corporation with its main office in Los Angeles, California and satellite offices in nearby counties in Southern California. She excels in writing blog posts, how-to's, and other related web copies.

There are many reasons why it is important to have a lawyer when dealing with a car accident injury claim or lawsuit. The many reasons are discussed here. Additionally, you need a lawyer to navigate through the many liens or claims that may be asserted by companies against your settlement or judgment money. The following are common claims by 3rd parties wanting money from your settlement:

1. Hospital and Doctor Bills not Submitted through Health Insurance
2. Health Insurance Companies wanting to be paid back
3. Medical Payments Coverage from an Auto Insurance Policy
4. Medicare or Medicaid
5. Workers' Compensation Liens

1. Hospital and Doctor Bills not Submitted through Health Insurance:

If a hospital or doctor refused to submit their bill through your health insurance there is probably a "claimed lien" on your recovery by the hospital or doctor wanting to be paid back in full for their bill. We advise all of our clients to demand the hospital or doctor submit the bills through their health insurance coverage and to go to a different provider if they refuse to do so. Hospitals do this because they want a higher reimbursement rate at the expense of your settlement share. So you must insist that bills are submitted through health insurance and do not agree or sign anything to the contrary. However, if you do not have health insurance you have no choice but to be treated with a lien against your recovery or pay out of pocket costs.

In both Missouri and Illinois there are limits to the amount of the lien the healthcare provider can claim. For a discussion on the Missouri law see, "Can Your Health Insurer Demand Payback for Medical Expenses?"

In Illinois the law is called the "Healthcare Services Lien Act" as essentially states that the total amount of liens from doctors and hospitals cannot eat up more than 40% of your recovery, after attorney fees and costs. EXAMPLE: Case settles for $100,000 but you have medical liens for $50,000. After attorney fees of 1/3 and costs of a few thousand dollars, let's say your recovery is $65,000. the most the healthcare providers can take as part of their lien (assuming they have a valid lien in the first place) is 40% of the $65,000, or $26,000, leaving you with $49,000 in this hypothetical.

The above numbers are assuming a valid lien has been made and the bills are reasonable and necessary. There are many other ways to deal with the liens, however, under Illinois law the above is the maximum amount they can take. Experienced car accident lawyers know how to get the liens often reduced even more through other means. Another example on why having a lawyer maximizes your recovery after a car accident.

2. Health Insurance Companies wanting to be paid back:

Your health insurance paid for all your treatment, so you have to pay them back from your settlement? That depends, do you have coverage through work? if so it is likely an ERISA protected plan. See "Dealing with ERISA Liens When Settling Personal Injury Cases". For ERISA plan treatment in Illinois injury cases see: "Illinois ERISA Plan's Right of Recovery from Your Personal Injury Settlement".

If you have individual coverage, then in Missouri they cannot take any of your settlement money. It would be called "subrogation", and in Missouri that is not enforceable in car accident cases.

In Illinois, however, subrogation by a health insurance company is allowed. Their amount recoverable from your settlement is reduced by the proportionate share of attorney fees. Therefore, if the subrogation claim is for $10,000 and your paid 25% in attorney fees, the subrogation claim is also reduced by 25%, this is referred to as the "Common Fund Doctrine". Additionally, if you are held partially at fault for the accident, lets say 25% at fault, then the subrogation amount is also reduced by that amount as well.

3. Medical Payments Coverage from an Auto Insurance Policy:

Sometimes you may have "Med Pay" coverage under your auto policy which will pay for some of your medical bills, regardless if the accident was your fault or another driver's fault. Just like subrogation with individual health insurance discussed above, in Missouri the med pay insurance company has no right to med pay reimbursement, but in Illinois they do.

4. Medicare or Medicaid:

If you are a Medicare or Medicaid beneficiary and they paid for medical treatment related to a car accident, then the government has a "super-lien" against your recovery. A super-lien is an automatic lien, they do not have to notify you, your attorney, or the insurance company. Therefore, if the insurance company settles and writes you a settlement check without making sure there is not a Medicare or Medicaid lien on the case then they are responsible for the lien amount. Most auto insurance companies will not write any injury settlement check until we get written confirmation from both Medicare and Medicaid that there is not a potential lien on the recovery.

Again, a very critical reason to have a good injury lawyer handle your car accident case. For more details on Medicare and Medicaid liens see: "Medicare recovery against Personal Injury Awards".

5. Workers' Compensation Lien:

If you were hurt in a car accident while on the job then you probably had a work comp claim and a 3rd party claim against the at fault driver. The workers' compensation coverage will pay out faster, cover medical bills, and a percentage of lost wages. These work comp payments are typically made early on and help avoid financial distress.

When the case against the at-fault driver is resolved, you have to pay back the work comp insurer for benefits paid. In the long run the victim still come out ahead and the payment is reduced by what is known as the " The Ruediger Formula" because the lien reduction formula was laid out in the case of Ruediger v. Kallmeyer Brothers Services, 501 SW2d 56 (Mo. 1973).

The Ruediger Formula applied with an example of $300,000 settlements and $90,000 in work comp benefits paid.

So $90,000 / $300,000 equals a ratio of 0.3 meaning that the work comp insurer can recover up to 30% of your recovery AFTER deduction for attorney fees and costs.

So if the 3rd party case attorney fees and costs totaled $110,000 then the work comp carrier and recover up to 0.3 of $290,000, or $87,000.00