Missouri Injury Law Blog

Last year, we discussed Missouri punitive damages under Ronald Sanders v. Iftekhar Agmed, MD, et al, one of several cases to go before the Missouri Supreme Court on the issue of punitive damages caps. Last month, one of these cases was decided. If this case is a harbinger of what's to come, then it looks like these caps are here to stay.

The case is Estate of Overbey v. Chad Franklin National Auto Sales North, LLC, and was issued on January 31, 2012 from an en banc panel of the Missouri Supreme Court. While the case was about fraudulent misrepresentation under the Missouri Merchandising Practices Act (MMPA) instead of personal injury, many of the issues are applicable to personal injury cases. At trial, the Overbeys were awarded $1,000,000 in punitive damages against Chad Franklin, the proprietor of the dealership. Pursuant to Mo. Rev. Stat. Section 510.265, Mr. Franklin had the damages reduced to $500,000.

Under 510.265, - Limits of Punitive Damages in Certain Cases - "No award of punitive damages against any defendant shall exceed the greater of (1) Five hundred thousand dollars; or (2) Five times the net amount of the judgment awarded to the plaintiff against the defendant." On appeal, the Overbeys claimed that the reduction violated their rights to trial by jury. The "trial by jury" claim was also the basis for the plaintiff's appeal in Sanders.

The Missouri Constitution states that "the right of trial by jury as heretofore enjoyed shall remain inviolate." Mo. Const. art. I, § 22(a). Further, in Scott v. Blue Springs Ford Sales, Inc., 176 S.W.3d 140 (Mo. banc 2005), the Court held that the right to have a jury determine damages applies to any law that allows for damages as a remedy. This includes both nominal and punitive damages. However, in this case, the Court made clear that just because a plaintiff has the right to have a jury determine damages does not mean that he is entitled to unlimited damages "under the MMPA or under any statute" (emphasis added). So long as application of the cap did not interfere with how the case was decided, application of s 510.265 does not violate the Missouri Constitution.

The plaintiffs also alleged that the reduction of their punitive damages awards violated separation of powers, equal protection, their due process rights, and Missouri's prohibition on "special laws." The Court rejected each one of these challenges.

While this case was not about personal injury per se, the phrase "under any statute" gives the court plenty of room to find caps on punitive damages constitutional in a tort context. We should be getting a decision on Sanders in the next month or two. However, if it follows the lead of the court in Overbey, it appears that the 2005 tort reforms, including punitive damage caps, are here to stay.

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Today the Missouri Supreme Court had a Hearing on the Constitutional Challenges to the Missouri Medical Malpractice Damage Caps

Sansone obtains Punitive Damages Jury Verdict - 700 times actual damages.

Bike accidents happen all too frequently and as a St Louis bike injury lawyer the vast majority of bike accidents I see are exactly that, accidents. Accidents wherein a driver may be liable for the injuries because they were negligent, meaning they unintentionally and mistakenly did something wrong and failed to keep a lookout or yield and thus hit a bicyclist. Every so often I believe the driver may have done it on purpose or out of road rage. Additionally, I have often seen drunk drivers hit cyclists in Missouri and Illinois. Never have I seen a video as blatant as the one below, a bus driver was convicted of purposely hitting a cyclist, and it was caught on video.

The bus driver pleaded guilty to and was convicted of dangerous driving and causing grievous bodily harm to a biker. Had this incident not been caught on tape it may have been a hard conviction to make. Now consider if it was not a bus driver with passengers and on a road with witnesses, instead a car with a single driver that hits a cyclist on a rural roadway. See St Louis Cyclist hit By Drunk Driver. No witnesses and the driver can make up any story he wants, such as: the cyclist swerved into the lane, ran off the roadway themselves, or the even more common situation of the driver keeps going.

For these reasons is why any bicyclist needs an experienced St Louis bike lawyer to investigate and aggressively pursue the at fault driver or to pursue an Uninsured Motorist Claim if the driver fled the scene of the collision and could not be identified, thus becoming a phantom vehicle which is an uninsured motorist under Missouri law, thus the cyclist's injures should be covered if they have an auto insurance policy. Additionally, if there is evidence of purposeful striking of the cyclist or drunk driving, you must pursue punitive damages, this will result in a higher compensatory award as well as a punitive damages award. Punitive damages are a necessary allegation as the claim for punitive damages is not only legitimate, but raises the stakes for the defendant which puts more pressure on his car insurance company to settle the case for what it is worth.

Other Bike Accident and Injury Articles:

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

Bicyclist Right of Way at Unmarked Intersections

Continue reading "Bicycle Injuries - Usually Negligent but Sometimes Drunk Drivers or Road Rage" »

A recently released Food and Drug Administration study has found that measureable amounts of lead exist in many popular brands of lipstick. In total, the FDA found 400 lipsticks on the market that tested positive for lead. Of the brands tested, the least contaminated lipstick was Wet 'n' Wild Mega Mixers Lip Balm Bahama Mama.

On the opposite end of the spectrum were Five L'Oréal and Maybelline lipsticks which ranked among the most contaminated with lead. Maybelline's Color Sensational Pink Petal lipstick had the most lead of all those tested, 7.19 parts per million. The L'Oreal lipstick contained about 7.0 ppm. Additionally, several other popular brands of lipsticks were also found to have high lead content levels. For instance, the Cover Girl and Nars lipsticks were found to contain lead levels close to the 5 ppm. The Cover Girl lipstick measured at 4.92, while Nars measured at 4.93. Other brands tested in the report include Cover Girl, Revlon, Estée Lauder, M.A.C., Burt's Bees and Almay.

Though the FDA has said that the amount of lead should be safe for consumers, other states have more strict requirements. For instance, California limits lead to a maximum 5 ppm, meaning several lipsticks tested exceed the threshold in that state for lead exposure. The FDA regulates cosmetic safety under the Federal Food, Drug, and Cosmetic Act. Cosmetics must "be safe when used as directed in the labeling or under customary conditions of use." However, cosmetics companies do not have to gain premarket approval for their products. The Campaign for Safe Cosmetics has begun a drive to pressure the FDA to regulate lipsticks and other consumer cosmetic products more carefully, insisting that danger is possible.

Concerns about the amount of lead in products like lipstick, which are easily ingested, have been around for a while now, but the Food and Drug Administration has not seemed unduly concerned. The agency says that it is not too worried about contamination from lipsticks, because little of the lipstick is actually ingested.

In these lipsticks, lead is not used as an ingredient, but is considered an impurity. Lead is a chemical compound found naturally in the air, water, and natural environment. St. Louis personal injury lawyers are aware of the many side effects and complications arising from lead exposure contamination. For instance, lead exposure in pregnant women can lead to delays in neurological development, hampering overall fetal development.

The cosmetic industry has no set standards about the kind of chemicals that can be used in their products, and companies generally depend on their own research to determine which ingredients are safe for consumers. If you think you may be sick or 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: "Lead found in 400 lipsticks, according to report by Food and Drug Administration," published at NYDailyNews.com.

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Distracted driving is something that takes the lives of many innocent Missouri drivers each year in fatal car collisions. You would think that something so deadly would be heavily regulated in the hopes of eliminating the danger. Not so in Missouri. Compared to the rest of the nation, Missouri lacks the laws necessary to deter distracted drivers. Most states have four or five relevant laws; Missouri is one of 12 states that have one or none.

Currently, the only relevant law in the sate deals with texting while driving and only concerns those 21 or younger. To help improve the situation, a Distracted Driving Summit, moderated by Missouri State Highway Patrol Captain Tim Hull, was held in Jefferson City this week. The summit was intended to develop an education program that can be used across Missouri to inform the public about the deadly consequences of driving while distracted.

The summit began with a presentation by Jennifer Smith, whose mother was killed in 2008 after being hit by a man talking on a hands-free phone. Smith said that it's wrong to assume that hands-free devices are safe, saying that they too impede the driver's cognitive responses. "Yes, your hand is on the wheel, but your brain isn't seeing what's right in front of it."

Smith referred to this particular problem as "inattention blindness." A study conducted at the University of Utah has shown distracted driving places the driver's cognitive functions at a level similar to that of an intoxicated person with a blood alcohol content of 0.08 percent, equal to Missouri's legal limit.

Another shocking bit of information is that in the time it takes to send or read a text, a driver can travel the length of a football field. Even a moment of inattention can be deadly, as Smith has painfully come to understand. She said the number of fatalities resulting from distracted driving is comparable to one major aircraft crash per week. Instead of acting like it's a big deal that must be stopped the public has remained largely complacent leading to further unnecessary deaths.

Law enforcement officials have found that enforcing the texting while driving ban has been difficult. Although officers at accidents fill out crash reports and are supposed to have the power to subpoena phone records, that rarely happens.

Given the lack of distracted driving laws on the books in Missouri, law enforcement agencies must draft carefully worded city ordinances and use creative strategies to stop distracted drivers. One strategy is to pair up offenses like speeding and phone use, using high ground to be able to look into cars and spot the texting or talking.

Another major problem in the state is a lack of information. Few hard statistics exist about the real sources of distracted driving and numbers need to be shown for there to be action. To remedy the problems, a new crash report form and policy was introduced in January across the state. The form offers more detailed options to establish what exactly distracted the driver and differentiates between hand-held devices, hands-free devices, web browsing and other electronic activities.

With inattention listed as the primary cause of crashes in Missouri, personal injury attorneys across the state see more and more examples of the negative effects of such carelessness. The tragic consequences of distracted driving are why we at Sansone / Lauber repeatedly stress vigilance and awareness while operating motor vehicles. It only takes one or two seconds of distraction to cause irreparable damage. 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 1-314-863-0500.

Source: "Distracted Driving Summit aims to bring attention to statewide problem," by Alyssa Schueneman, published at ColumbiaMissourian.com.

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Role of Property Damage Pictures in Missouri Car Accident Injury Trials

In Missouri, injury claims, such as a car or truck accident, are valued by the amount of harms and losses suffered by the victim. There are two general types of harms and losses or "Damages" in personal injury cases; (1) Special damages or economic damages: which include specific amounts billed or out of pocket, such as past and future medical bills, past and future lost wages, damage to property. The second general type of damages is (2) Non economic damages or pain and suffering. In the past medical bills were determined by the amount billed, not the amount paid. So if the injured victim was charged $100,000 in medical care but their insurance paid $50,000, at trial the evidence would be $100,000, not $50,000.

Currently, the billed versus paid amount being submitted to a jury is controlled by the Missouri Supreme Court case of Deck v Teasley. See St Louis injury law article: "Under Missouri Personal Injury Law, Medical Damages are Amount BILLED to patient, NOT Amount PAID by Insurance; assuming proper evidence is established by Plaintiff" However, What if the medical bills are only partially paid and not satisfied in full by a lower amount paid by insurance, can the defense make a rebuttable presumption of reasonable value being the amount paid? As a practicing St Louis PI lawyer I think the answer is no.

An affidavit as to the amount partially paid with a balance owed should not invoke the rebuttable presumption of reasonable value created by Missouri Statute 490.715. As the statute specifically provides that " (2) In determining the value of the medical treatment rendered, there shall be a rebuttable presumption that the dollar amount necessary to satisfy the financial obligation to the health care provider represents the value of the medical treatment rendered. R.S.Mo. 490.715.5 (2) (emphasis added.) If the medical providers bills are not satisfied in full then the defendant should not be entitled to the statutorily created presumption. No provision of law, and certainly not R.S.Mo. 490.715, allows Defendant to urge that the partial payment of a medical bill which does not satisfy the balance owed is the reasonable value of medical services provided to Plaintiff.

The Deck case did not completely resolve the billed versus paid battle. This is currently still a tricky area of law and is handled differently by different judges. At trial many Judges are currently allowing the plaintiff to submit evidence of the total amount billed and allowing the defense to submit evidence of the amount paid. However, neither side is allowed to comment as to why the numbers are different. Neither side is allowed to mention insurance, neither medical insurance or auto insurance. So they issue of billed versus paid is still not completely settled, but good injury lawyers are making sure they submit the strongest evidence on behalf of their clients to at least get the amount billed in front of a jury whether it is submitted with the amount paid or hopefully, just by itself.

St Louis car accident attorney and personal injury lawyer Ben Sansone of the Sansone / Lauber law firm has been practicing injury law for over 10 years in the St Louis area and across Missouri and Illinois. Call (314) 863-0500 or contact an injury lawyer online for a free no obligation consultation today.

More and more often, personal injury cases are now involving my client's Facebook or other social networking accounts. Always assume, anything you put on your social networking account will be seen by the other side and can compromise your injury claim. Before the Internet, insurance companies, attorneys, law enforcement, collection agencies and other individuals responsible for investigating information had to work harder to verify statements from individuals. It was much harder to do many tasks that are taken for granted today such as case discovery, job hunting and so forth.

The rise of social networking websites such as MySpace, Facebook, LinkedIn and other online communities have encouraged people to post anything and everything about themselves. Friends and acquaintances are not the only people taking notice. It has also become a crucial tool used by insurance companies, and other organizations, to gather evidence and seemingly innocuous posts on popular websites can damage a personal injury claim.

Attorneys use social networking websites to verify what the opposing party is doing. If someone gets into an accident and claims to have an injury while submitting documentation that he or she cannot work, an investigator can easily go look up the person's Facebook page. If the person's Facebook page displays pictures of them dancing or rock-climbing or doing something that contradicts what was told to the insurance company, that person has just sabotaged their case.

Being tagged in a photograph by a friend who does not have privacy settings on a Facebook page can also spell trouble. If a supposedly injured person is seen doing something they claim not to be able to do, it can be used as evidence to deny a settlement offer or dismiss a court case seeking money for injuries. While this article should not be read as encouraging deception, injured parties should be aware that anything posted online is not 100% private.

Your Missouri personal injury attorney recommends taking down or deactivating all individual social networking pages while a claim is being pursued. If you're not prepared to take the big step of deactivating your accounts, there are other precautions that can be taken short of that.

1. Immediately make your profile "private," and set all privacy settings to the highest level.
2. Remember to not discuss your accident, injuries or treatment, including any prescribed medication, on ANY social networking sites.
3. Avoid discussing recent activities you've engaged in, physical exertion, abilities and limitations, or any other information that may bear on what you can and cannot do because of your injuries. It's important to avoid this even if you're not directly talking about activities related to your lawsuit.
4. Remove all photographs and videos of you taken since your injury, and refrain from posting until your claim has been resolved.
5. Be sure you know everyone who is your "friend." Do not accept friend requests from people you do not personally know.
6. Review your friend list and block anyone you are not 100% sure you trust. Opposing parties could pose as a friend or get information from others who are to gain access to potentially incriminating information that could negatively affect your lawsuit.

The most important point to remember about personal injury: social networking is used by everyone for a multitude of purposes and any competent St. Louis personal injury lawyer should alert their clients to this reality. Before considering whether to continue a social networking presence, a personal injury claimant should consult a skilled Missouri personal injury attorney who can provide specific guidance and instruct a client to act accordingly. If you need advice with your personal injury claim, contact Sansone / Lauber law firm today for a free initial consultation at 1-314-863-0500.

Source: "Social Networking Impacts Personal Injury Cases," by Ann Sheeley, published at PBN.com.

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St. Louis churchgoer sues over injuries from excess "spirit" - Act of God?

Role of Property Damage Pictures in Missouri Car Accident Injury Trials

According to a recent article on KSDK.com, the Missouri State Highway Patrol has recently released several tips for drivers after a fatal accident along a busy stretch of interstate in St. Louis. Southbound Interstate 55 was closed just this week when a pedestrian was struck and killed by a tractor-trailer near Sidney Street.

Police say the victim, 67-year-old Moustafa Elmansy, got a call from a friend saying he needed help. The friend was pulled over on the shoulder of I-55 after his car had run out of gas. The victim bought gas and rushed out to help his stranded friend. When Elmansy arrived, he parked in front of his friend's stalled vehicle and began adding gas to the car when he was clipped by a passing semi. Police have said that the truck driver told them he never saw the victim prior to the impact.

Missouri State Highway Police Sergeant Al Nothum said that if a driver encounters vehicle issues "always yield to the right." This is because drivers have significantly more room on the right shoulder than the left. Nothum says following a few guidelines can save you from a potentially dangerous situation, risking not only injury, but also death. The left shoulder, where Elmansy was hit and killed, is not a place to be outside of the car. A good general rule of thumb is to stay inside your vehicle where you at least have some level of protection. Once a driver exits the vehicle their chance of injury increases exponentially.

The Missouri Highway Patrol also has a toll free number for drivers who find themselves in dangerous situations while on the interstate. "Call *55 and inform them where you're at," Nothum said. "Give them a good location and tell them you need assistance immediately." Highway Patrol says that someone will be dispatched immediately to provide a safe perimeter and assistance.

The victim that was tragically killed was married with children. Though it is a horrible accident, police so far believe no serious charges are expected. However, the investigation remains ongoing.

Suffering from a pedestrian accident caused by another person's actions can leave you facing injuries that will affect your life in a number of ways. You need to understand that you do have rights to protect during this difficult time so that you can move forward. You can resolve this matter in a beneficial way when you ensure that your case is handled properly so that you do not suffer medical bills, lost work wages and other costs. With the help of an experienced St. Louis car accident lawyer, you can begin to move forward with your case and regain your life.

The tragic consequences of traffic accidents are why we at Sansone / Lauber repeatedly stress vigilance and awareness while operating motor vehicles. It only takes one or two seconds of distraction to cause irreparable damage. Our Missouri car accident attorneys regularly handle car accidents and cases involving pedestrians being struck by other vehicles. For information on how to protect your legal rights if you or a loved one has been seriously injured, call our office today for free at 1-314-863-0500.

Source: "Missouri Highway Patrol offers tips after Moustafa Elmansy killed on I-55," by Steve Patterson, published at KSDK.com.

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Defendant's Denial of Liability can Come back to Haunt Them

Evidence in Missouri Drunk Driving Car Accident Injury Case: Proving the Other Driver was Intoxicated

In Missouri auto accident cases, it is typical practice for insurance defense lawyers to outright deny all liability, even when the insured driver being sued is clearly at fault. I see it all the time and am amazed, especially when the car accident was caused by a drunk driver. Fault is often admitted directly by the driver, or even when they plead guilty to DWI or failure to yield, reckless driving, failure to maintain safe distance, or other traffic ticket they plead guilty to. Fault has been admitted to through a plea of guilty to the traffic violation and the accident is clearly their fault. So in their deposition the defendant, a drunk driver in my example, will admit they pleaded guilty to the DWI charge to get probation (an admission of fault) and that the injured victim or other driver was not speeding and do not do anything improper.

So a trial tactic insurance lawyers like to take, after dragging an injured person through months or years of litigation, is to say to a jury, "we know it was our fault so go ahead and give them a little money and pay their medical bills, but do not give them as much money as they are asking for." This is an attempt to gain credibility with the jury and act like they want to do the right thing and pay for the damages their insured driver caused. I immediately respond to these appeals to the jury with a statement to the affect that the insurance company has the gall to admit they are at fault, yet refuse (until now) to pay the Plaintiff for their injuries and drag them through litigation and a car accident trial.

Additionally, attack them with their prior legal pleadings denying liability, showing that they now claim they want to do the right thing, but all along have been denying liability. This tactic will be objected to and fought by the insurance lawyer, however, Missouri case law supports the proposition that the victim's lawyer can make this argument, even if the pleadings were later amended.

When a defendant takes a position at trial that is inconsistent with a prior pleading, that pleading may be received in evidence. "Such admissions are not binding on the party but may be employed for impeachment and are to be weighed by the trier of fact in the same manner as any other admission. Hall v. Denver-Chicago International, Inc., 481 S.W.2d 622, 628 (Mo.App.1972). The basis for receiving in evidence the pleading admission, later abandoned, is its inconsistency with the position taken at trial. Howell v. Dowell, 419 S.W.2d 257, 260 (Mo.App.1967)."

Thus, given that a prior or superseded or abandoned pleading may be received in evidence because of inconsistency with a position taken at trial, as an admission against interest, and/or for impeachment purposes, Bank of America, N.A. v. Stevens, 83 S.W.3d 47, 56 (Mo.App. S.D. 2002), precluding its use in advance would be improper.

This along with may other trial tactics are very important, often it is not enough for a jury simply to agree with the injury victim that the other driver was negligent, a good trial lawyer shows the defendant's disregard and lack of caring for what they did, which should result in a better result for the injured victim of the car accident.

See related blog:

Evidence in Missouri Drunk Driving Car Accident Injury Case: Proving the Other Driver was Intoxicated

Trial Evidence in Missouri Personal Injury Lawsuits - Can a Personal Injury Lawyer Admit into Evidence an SIS (Suspended Imposition of Sentence - probation in lieu of a conviction)

Continue reading "Defendant's Denial of Liability can Come back to Haunt Them" »

People in Missouri hear it all the time. Whether it's from your mom or a message on a poster in the restroom: Wash your hands after using the bathroom and before eating. Use soap and hot water. And make sure you wash your hands long enough to do the trick. Even elementary school students could repeat that if asked.

You might think that doctors would also know when to wash their hands. After using the bathroom, before eating and before going into surgery, right? Wrong. A recent study discussed in Time Magazine shows that medical students may not know everything there is to know about hand washing despite practicing medicine and assisting in operating on patients.

Researchers at Hannover Medical School in Germany surveyed 85 medical students who were about to enter their clinical training - which is when they first begin to deal with actual patients. The med students were given seven scenarios, five of which required hand washing: before contact with patients, before preparing IV fluids, after removing gloves, after contacting patients' beds and after contact with vomit (the other two scenarios did not require hand-washing).

Only 1 in 5 students correctly identified what to do in all seven situations. And just 1 in 3 got all five hand-washing scenarios correct. Most students knew that they were supposed to wash their hands before contacting a patient, after touching their bed and after contacting vomit, but 15% to 20% could not correctly identify the other two hand-washing situations.

What does this mean for you? Improper hand washing by doctors and physicians is a leading cause of spreading germs and contagious diseases from one patient to another. This is because much of a doctor's job involves physical contact with patients. Thus, doctors who conduct surgery on someone with one disease and then don't properly wash their hands, could easily spread germs and cause infection once their hands come into contact with different patients.

Because doctors are professionals, they are expected to know more than the ordinary person about the tools of their trade and the safety requirements involved in the medical field. And when a professional, like doctors, falls below the standard of care required in their profession, such as proper hand washing procedures, those professionals can be held liable for injuries and damages caused by their lack of knowledge or lack of care.

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: "2 Out of 3 Medical Students Don't Know When to Wash Their Hands," by Alice Park, published at Time.com.

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

As a personal injury attorney in St. Louis you run across a lot of interesting stories. People find all kinds of ways to get hurt and to hurt others. The following slip and fall related story, from ABC News, is definitely not something you hear everyday.

A churchgoer at the Disciple Fellowship Christian Church in East St. Louis, Ill., claims the spirit moved a fellow worshiper so much during service that she caused others to fall over backwards into her, causing personal injuries. The congregant is now suing the church for damages, apparently for being too inspirational.

Cheryl Jones, the injured woman, alleges in a complaint filed last month that she was visiting the church when member received a hefty dose of "spirit" and, with no ushers there to assist, the parishioner fell backwards knocking several other people into the plaintiff.

An attorney for the plaintiff, says, "They should have either warned Cheryl and people like her of the potential dangers - especially if they're not going to have deacons or parishioners to help these people when they fall." The attorney says the church should have been aware of the danger as falling during service is something that apparently happens frequently.

Jonathan Turley, a professor at George Washington Law School said that the case presents intriguing questions regarding what standard of law to apply, "someone engaged by the holy spirit and not fully accountable or someone that should be treated objectively as assuming the risk of this activity." When filled with what is often called the holy spirit, "participants are worked up into such a frenzy that they may no longer appreciate or respond to risk. The question is how much is the church responsible in anticipating people will be acting without concern for danger or injury," said Turley.

Turley went on to explain that, "The whole idea of being touched by the holy spirit is to surrender yourself. In doing so, these are people that surrendering themselves to collapsing involuntary. These churches tend to treat this response as the holy ghost has taken away the power of the individuals to even stand."

Jones' complaint alleges the church was negligent and should now pay her medical bills that resulted from her falling and losing consciousness after hitting her head, neck, back and buttocks during the January 5, 2010 services. The complaint claims that the church typically had "two ushers that would stand on each side of the member to prevent the person receiving the 'spirit' from falling and injuring themselves" but no one was present when she was injured.

Jones accuses the church of negligence for failure to provide parishioners a safe place to worship; failure to ensure ushers were standing behind the parishioners to catch if they fell to the floor after the Pastor laid his hands on them; failure to control the parishioners who were receiving the "spirit"; failure to warn plaintiff and parishioners of the potential dangers of receiving the "spirit"; and failure to conduct a reasonably safe service.

According to ABC News, the complaint is a part of a recent national trend of suits dubbed "swoon and fall." A woman in Michigan filed a lawsuit against her church after she struck her head on the floor when an assistant minister prayed over her, allegedly causing her to be "slain in the spirit" and fall backwards. In Oregon, a church was not found liable after a woman was injured while assisting during service while other churchgoers were blessed and fell on top of her.

Professor Turley says that the trend indicates that churchgoers are "discovering that churches are not immune from tort liability. Church has no special status when it comes to tort law. They are an institution that must take reasonable precaution."

If you've been injured, whether in church or not, you need an experienced St. Louis injury attorney to fight to ensure you receive the benefits you deserve. Contact Sansone / Lauber today for a free initial consultation at (314) 863-0500.

Source: "Evangelical Churches Catch Suits From 'Spirit' Falls," by Lyneka Little, published at ABCNews.com.

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The Missouri legislature is undertaking the challenge of reforming the state's workers' compensation law. Earlier this month the state senate held a hearing and witnesses testified regarding proposed changes to the law. Making its way through the legislature is Senate Bill 572, which proposes some radical changes to the existing workers' compensation system. The act proposes that all occupational diseases be covered by workers' compensation laws. The act also attempts to protect co-employees from liability for acts that are not purposeful. As such, if a co-worker's negligence is responsible for the injury and/or death of another employee, the co-worker will not be held personally liable.

The bill provides significant advantages for employers because it limits the use of the second injury fund. A second injury fund is one where employers pay a flat rate into the fund. It allows employers to hire individuals with disabilities and preexisting diseases. If the employee is injured on the job, the employee is compensated out of the second injury fund. The standard workers' compensation fund is financed by a variable rate charged to employers, which is based on the probability that an injury will occur in their workplace.

Because of this difference in funding, employers are attempting to push more of their cases into the second injury fund to avoid paying the higher rate charged by the standard workers' compensation fund. The second injury fund has been completely liquidated and is now in debt. The fund currently owes more than $100 million in claims to injured employees. The new bill limits which types of preexisting conditions and disabilities will have access to the second injury fund. The act no longer allows claims for permanent partial disability against the second injury fund and only allows claims for permanent total disability when three conditions are met: 1) there exists a medically documented preexisting permanent disability caused by military duty or a preexisting permanent partial disability; 2) the preexisting disability equals a minimum of 50 weeks of compensation according to the medical standards that are used in determining compensation; and 3) a subsequent work-related injury occurs and, when combined with the elements of the prior injury, results in permanent total disability.

It is easy to see why some of the individuals who testified at the hearing were upset. Some people view this new bill as a way of giving employers a free ride and not holding them accountable when there are injuries in the workplace. The Missouri AFL-CIO has come out against the bill, saying that "All we're looking for is a fair shake when we are injured in the place where we work. We are not looking to break our employer."

Should this measure pass, it will be more difficult for injured workers to receive workers' compensation benefits in the future. An experienced Missouri injury attorney will provide you with the representation you need to fight for the benefits you deserve. A skilled St. Louis personal injury attorney is required to navigate the confusing codes and legal pitfalls. Contact Sansone / Lauber today for a free initial consultation at (314) 863-0500.

Source: "Debate Rages Over Missouri Workers' Comp Reform," by Tim Sampson, published at OzarksFirst.com.

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Missouri Now Allows Impeachment of Witness of Collateral Matters not Relevant to Case
Premise Liability Injury at Hospital - Medical Malpractice or Common Law Negligence?

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

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

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

Common forms of Impeachment:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See Also:

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

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

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

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

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

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

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

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