Missouri Injury Law Blog

Medical malpractice claims are very complex and adversarial, and in that environment every edge counts. In reviewing cases with doctors to act as your expert, they sometimes have preliminary reports in the form of an email based on their initial understanding of part of the medical record. This is done in preparation for filing a lawsuit or for trial and should be kept between the attorney and expert. In a perfect world the expert will call the Plaintiff's lawyer to discuss his opinions, but with the convenience of email that is not always the case.

A preliminary report by an expert containing mental impressions based on initial review of case should be protected under Rule 56.01(b)(3) as Trial preparation materials. Rule 56.01(b)(3) states that a

"party may obtain discovery of documents and tangible things otherwise discoverable under Rule 56.01(b)(1) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative, including an attorney, consultant, [...] only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the adverse party is unable without undue hardship to obtain the substantial equivalent of the materials by other means."

The work product doctrine in Missouri protects from discovery both tangible and intangible work product. Ratcliff v. Sprint Mo., Inc., 261 S.W.3d 534, 547 (Mo.App. W.D.2008). Tangible work product consists of documents and materials prepared for trial and is given a qualified protection under Rule 56.01(b)(3). Therefore a preliminary report sent to counsel by their expert is protected from discovery as trial preparation materials if the preliminary report is: (1) documents or tangible things, (2) prepared by or for a party or a representative of that party, (3) in anticipation of litigation or for trial. State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367 (Mo. banc 2004)

Such trial preparation materials may be discovered only if the party seeking discovery shows a substantial need for them in the preparation of the case and an inability to obtain the substantial equivalent of them without undue hardship. Rule 56.01(b)(3).See Edwards v. Mo. State Bd. of Chiropractic Examiners, 85 S.W.3d 10, 26 (Mo.App. W.D.2002).

Moreover, Rule 56.01(b)(3) requires that in ordering discovery of such materials stated above, when the required showing has been made, "the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative [expert witness] of a party concerning the litigation." Therefore, even if the party seeking the report show the substantial need and undue hardship, the preliminary report contains nothing but the Relator's expert's mental impressions, conclusions, and opinions and thus must be protected in its entirety. In this case the Court ordered the entire report produced.

Additionally, Missouri Rule 57.03 does not authorize the noticing party or require the witness to produce documents simply because they are requested. Under Rule 57.03, any Notice of Deposition requesting production of documents must be accompanied by a subpoena. State ex rel. Missouri Highway and Transportation Commission v Anderson, 759 SW2d 102 (Mo App S.D. 1988) holding, In connection with and experts deposition, a party may obtain the expert's records relating to the case by serving a subpoena duces tecum. Id at 106.

Continue reading "Disclosure of Expert Witness' Preliminary Report in Missouri Personal Injury Actions" »

As lawyers we get used to required awkward legal terminology which is often required to get certain documents or testimony into evidence at a personal injury trial. In Missouri the phrase "Reasonable Degree of medical Certainty" has been required for some time in order to get a doctor's or medical professional's testimony into evidence at trial.

Oftentimes this is not a problem in most Missouri injury lawsuits, because at the end of a deposition or questioning at trial I simply ask the doctor, "Have all your answers and opinions been within a reasonable degree of medical certainty?" and 9 times out of 10 the doctor will answer "Yes." Usually, they know it is a legally required phrase for their opinions to get into evidence. However, some not so seasoned medical providers, for one reason or another, will not agree with that statement, even if they agree with the burden of proof of "more likely than not", or "but for".

Recently, a Jackson County Missouri case of Cable v St Luke's East Hospital, addressed this issue and the Judge ruled that the phrase is not required. Stating "Like most non-professional expert witnesses, Dr. Lynch does not use the "magic words" of reasonable medical certainty in her practice. She did opine, however, that she believed it was more likely than not that Plaintiff would have avoided the nursing home had he not experienced the problems Plaintiff attributes to Defendants' alleged negligence." The Court cited Tompkins v. Cervantes, 917 S.W.2d 186 (Mo. App. 1996).

In recent years, a few Missouri Courts have been giving less stringent followg of the magic words. In Wollen v. DePaul Heath Center, 828 S.W.2d 681, 682 (Mo. en banc. 1992), the court stated, "The cases on reasonable medical certainty ... reflect the lack of clarity that can [occur] when the legal profession tries to impose its terms on other professions." In Schiles v. Schaefer, 710 S.W.2d 254, 262 (Mo. App. 1986), the court of appeals held, "'reasonable medical certainty' is not a mandated 'verbal password' in questions propounded to an expert witness." The Supreme Court endorsed that view in Kircher v. Purina Mills, Inc., 775 S.W.2d 115, 117-18 n.2 (Mo. en banc. 1989).
rlington Northern, Inc., 212 Mont. 514, 689 P.2d 273, 277 (1984):

Missouri courts have generally adhered to a test of "reasonable medical certainty" as the basis for admissibility of medical records at personal injury trials, although they do not require of doctors the same strictness in testifying that was once required. Although Missouri courts still formally adhere to a "reasonable medical certainty" standard, the term is not well understood by the medical profession. The term was adopted in law to assure that testimony received by the fact finder was not merely conjectural but rather was sufficiently probative to be reliable. The Cable Court ruled that "Our evidentiary standards are satisfied if medical testimony is based upon an opinion that it is 'more likely than not.' ".

In my St Louis personal injury practice I have always had the opportunity to clarify the "reasonable degree of medical certainty" phrase with doctors before they testify, and so far no problems. I will continue to always have doctors recite that phrase because different courts will treat this matter differently. But it is good to see that if one day I run into the doctor who does not like the phrase, I have cases to back up an argument that the phrase is not needed.

The ethical state of business practice pivots on two things these days: bad press and/or lawsuits. What was once regulated by honor and integrity, these two seemingly more persuasive motivators have enabled us to be made aware of negligence pertaining to our health and welfare such as: the handling of beef in markets, assisted living facilities, police and precinct procedures, and careless doctors still practicing medicine. There is no doubt that investigative journalism perpetuates the public's outcry ball rolling.

Practicing in St Louis as a personal injury lawyer for ten years and after handling a lot of medical malpractice cases, the need for regulation and accountability in our healthcare industry is obvious. Most doctors hate lawyers so much that they will go to great lengths to cover each others backs. Don't get me wrong, most don't lie, but just about all will refuse to cooperate and help a patient who has been harmed by a doctor's negligence.

A major blow has been dealt to the health care consumer regarding accountability of providers. On September 1, in response to a decision by the Obama administration, the Health Resources and Services Administration (HRSA), an agency of the government run Department of Health and Human Services, removed a great source used in identifying oversights by state medical boards. The National Practitioner Data Bank (NPDB) was used by many sources such as state medical boards, hospitals, journalists, and insurance companies. The information previously accessible from this site listed, in broad descriptors, lax responses toward doctors with multiple malpractice payouts who were either never disciplined by the medical boards or their disciplines included numerous suspensions without a revocation of their medical license. It is important to note that the specific doctor's names are not mentioned in the public use file portion of the NPDB and any information that would name a doctor or facility specifically, must be acquired through other investigative resources.

Neurosurgeon Dr. Robert T. Tenny, of Kansas, complained to HRSA and threatened legal action if the information was not taken off the internet. This complaint made its way to the executive level of the government. A decision was quickly made and access to the site was removed. A letter was also sent to the Kansas City Star reporter who broke the story of Dr. Tenny's countless medical malpractice and wrongful death suites filed against him (all of which the good doctor has lost so far). I am sure the doctor would argue he is a good doc and the legal system is wrong every time.

The HRSA threatened the reporter that he could be liable for $11,000 or more, in fines for violating the federal law's confidentiality provision - though nonesuch violations were actually committed. Journalism and health care advocacy groups also responded quickly to these actions, including these letters to the administration rebuking not only the decision to shut down the public access file but also in response to the threat against the reporter. The journalists are actually baffled that the Obama administration has backtracked on its promise of greater transparency. As described by Charles Ornstein, president of the Advocacy for Health Care Journalists, who stated that the publically available anonymous data has been accessed for years, "nothing else has changed; just their interpretation (of the law)". Interpreting the law to suit oneself or, as in this case, doctors who have repeatedly shown an apathetic attitude toward patient care, or complete incompetence, does nothing but add more restrictions to those that are trying to hold these same people accountable for their actions.

St Louis injury lawyers who routinely deal with medical malpractice cases know that medical negligence cases are not only complex and expensive, but highly adversarial. It is often the approach of medical malpractice insurance companies and their lawyers to fight them with little to no negotiation and vigorous defense.

A common defense tactic in big medical malpractice cases is to name multiple doctors to testify on the same subject as an expert. Why do this? Two reasons, one, if one doctor testifies bad in a deposition then the defense will dis-endorse that doctor and stick with the other doctor. This tactic was used in our Medical malpractice case with spinal cord injury. Second reason, under Missouri Rules the Plaintiff has to pay the defense doctors for their time, that amount is usually $400-$700 per hour or even more. Thus it puts financial strain on the opposing party to force them to spend more money and put more risk on the table. Additionally, lawyers in the medical malpractice profession all know that is is difficult to get a doctor to testify against another doctor, but easy to find doctors lining up to defense other doctors.

How to counteract this tactic? Simple, first, if one of the experts does poorly in their deposition make sure that you videotaped it, then endorse that expert as one of your own and play the good parts of the deposition at trial.

Second, file a motion for protective order limiting the defense to only one medical expert on particular issue. This motion should almost always be granted in one form or the other. Usually the Judge limits them to one expert and they have to choose, or some judges will allow the duplicate experts to remain but require the defense to pay the expenses associated with the second deposition and then force them to choose one or other other expert for trial.

Missouri Rule 56.01(c) states:

"Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense..."

It is proper to exclude cumulative evidence. Payne v. Cornhusker Motor Lines, Inc., 177 S.W.3d 820, 840 (Mo.App. E.D. 2005).

Relevancy is the key criterion for admission of evidence, and the court must find evidence both logically and legally relevant in order to admit it. Olinger v. General Heating & Cooling Co., 896 S.W.2d 43, 48 (Mo.App. W.D.1994). "Evidence is 'logically relevant' if such evidence tends to make the existence of any material fact more or less probable than it would be without the evidence." State v. Sladek, 835 S.W.2d 308, 314 (Mo. banc 1992) (Thomas, J., concurring). But the inquiry does not end with logical relevance. Evidence must also be legally relevant to be admitted. Id. To determine legal relevance, the court must weigh the probative value, or usefulness, of the evidence against its costs, specifically the dangers of unfair prejudice, confusion of the issues, undue delay, misleading the jury, waste of time, or needless presentation of cumulative evidence. Id. The trial court must measure the usefulness of the evidence against its cost, and if the cost outweighs the usefulness, then the evidence is not legally relevant, and the court should exclude it.

Another example is Grab ex rel. Grab v. Dillon, 103 S.W.3d 228, (Mo.App. E.D. 2003), in which the plaintiff in a medical malpractice action sought to introduce a conclusion from a pathologist, which "came to the same conclusion as five other pathologists who reviewed the slides." The trial court excluded the pathologist's opinion because "[i]t is typically considered proper to exclude cumulative evidence." The appellate court affirmed the exclusion of the pathologist's opinion.

Continue reading "Use of Multiple Medical Experts on Same Topic, Should be Excluded as Cumulative " »

A now former attorney was sentenced to 25 years in prison for the drunk driving wrongful death of a 31-year-old woman and injuries to two others. While driving from a football game and fueled by twice the legal amount of alcohol, Tolliver caused the car crash when he ran a red light and slammed his SUV into an oncoming cab. The impact instantly killed 31-year-old, mother of two, Shannon Brown, while the other passenger suffered severe injuries of a collapsed lung along with loss of sight in one eye and the cab driver's injuries put him in a coma for several weeks. See: St Louis Lawyer blog article: TBI and Drunk Driving Trends

This guy had 4 separate prior DWI convictions. This is not a new situation, repeat offenders severely injuring and killing innocent victims. See Missouri Drunk Driving Accident Lawyer Ben Sansone Obtains St Louis County Judgment of $2.3 Million. The intoxicated driver's family members stated that he was receiving regular treatments; however, part of his probation agreement from his latest DWI conviction was that he not be allowed to drive. Though some may argue that after two convictions it should be realized the offender has no intention of obeying the law, but once again it took 4 DWI convictions, a death of a mother and permanent dismemberment and traumatic brain injury to others for a Fulton County Judge to "let the community know such behavior deserves severe punishment." As such and per a plea deal, she sentenced Tolliver to 25 years in prison. He pleaded guilty to one count of vehicular homicide and two counts of serious injury by vehicle, all while driving under the influence.

I have represented injured parties in other motor vehicle accidents involving drunk drivers. See Missouri Injury Law Blog: Drunk driving Law . While this is apparently a case of blatant intoxication with tragic results, many cases where the actions of the driver are just as egregious do not get the media attention because the driver did not kill anyone or severely harm them. But does that make their reckless actions any less reckless? I say no, we are currently pursuing five or six drunk driving cases with minor injuries.

When the driver was drunk but the injuries are minor, the insurance companies resist settlement because the injuries are not massive and therefore ignore the fact their driver was drunk. These cases must be pursued vigorously however some lawyer give up too easily on these cases . See: Illinois Drunk Driving Car Accident - My Client was Rear Ended by a Drunk Driver Going Approximately 60 MPH - Prior Illinois Personal Injury Lawyers Failed to Pursue Claim- Case Referred to Us for Trial

If you or a loved one are the victim of a reckless drunk driver, even if the injuries are minor, contact St Louis drunk driving accident lawyer Ben Sansone today for a free consultation. We aggressively pursue these cases.

"Dram Shop" cases are drunk driving injury cases pursued by the injured party, or their surviving family as a wrongful death claim, against the bar or restaurant that may have over served the intoxicated driver that caused the car accident. For more information on lawsuits against the negligent bar or restaurant for over-serving a drunk driver See Missouri Drunk Driving Accident Lawyer Article: Drunk Driving Accident Lawsuits in Missouri - Making a Negligence Claim Against the Bar that Over-Served the Missouri Drunk Driver

As an injury lawyer, often specializing in drunk driving injury cases, I can tell you first hand that Dram shop cases are difficult, but winnable. Under Missouri Statute § 537.053 a Dram Shop case has three main elements to the cause of action:

1. The claim must be brought (1) "by or on behalf of any person who has suffered personal injury or death"

2. Against a "person licensed to sell intoxicating liquor by the drink for consumption on the premises . . ."

3. Clear and convincing evidence the seller "knowingly served intoxicating liquor to a visibly intoxicated person"

That can be very tough case to prove, first you have to find out where the reckless drunk driver that caused the car accident came from, and they may not tell anyone where they came from or admit it to you.

The more difficult part to prove is whether or not the driver was "VISIBLY INTOXICATED" Can you find witnesses that remember seeing the intoxicated driver at the bar and remember or be willing to testify that they were visibly intoxicated? Probably not, most of these cases are proven through he police officer's observations and hopefully a blood or breath test. Then hire a toxicologist to testify what the driver's physical appearance would have likely been based on the BAC test by the police or their observations. In many cases the intoxicated driver who caused the accident may have little or no insurance, and certainly not enough to compensate an injured driver or passenger who is severely injured. Thus the possibility of pursuing the bar or restaurant is something that must be investigated in most drinking and driving car accident injury cases. See, Evidence in Missouri Drunk Driving Car Accident Injury Case: Proving the Other Driver was Intoxicated stating:

Whether a defendant is intoxicated may be proven by any witness who had a reasonable opportunity to observe him. State v. McCarty, 875 S.W.2d 622, 623 (Mo. App.1994); State v. Corum, 821 S.W.2d 890, 891 (Mo.App.1992).

[I]ntoxication is a "`physical condition usually evidenced by unsteadiness on the feet, slurring of speech, lack of body coordination and an impairment of motor reflexes.'" [State v. Ruark, 720 S.W.2d 453 (Mo.App.1986) ] at 454 (quoting State v. Blumer, 546 S.W.2d 790, 792 (Mo.App. 1977)).

The "VISIBLY INTOXICATED" portion of the dram shop law has recently been discussed by the Missouri Court of Appeals, Western District, in Nokes v HSM Host USA LLC, WD Court App Opinion 9/13/2011. In the Nokes case, the trial court granted summary judgment in favor of the defendant because the Plaintiff did not have any direct evidence that the driver was "visibly intoxicated", meaning an eye witness or videotape. The Appellate Court overruled that requirement stating:

"Nokes's evidence regarding Chiarelli's level of intoxication, taken together with the drink receipts, the police report, and the expert testimony that such a level of intoxication would produce outward manifestations of intoxication was sufficient to demonstrate the existence of a genuine issue of material fact as to whether the Host defendants knowingly "served intoxicating liquor to a visibly intoxicated person." Section 537.053."

Thus, in Missouri visible intoxication can be proven by circumstantial and indirect evidence, eye witnesses not required.

The heart of most personal injury claims, especially clear liability motor vehicle accidents, is damages. Damages being economic and non-economic; Economic damage is the amount of money required to compensate the Plaintiff for the out of pocket expenses (i.e. medical bills, future medical costs, medicine, lost wages, etc.) See St Louis Personal Injury Attorney Article: Personal Injury Trials: Proving Damages and Arguments to the Jury About Medical Testimony or Lack Thereof Non-economic damages or "pain and suffering" being the amount to make up for or at least balance the past and future harms and losses that the Plaintiff is suffering. Pain and suffering damages are the most important type of damages as they represent the real personal harms and losses an individual suffers; the daily emotional and physical pain an injury can cause. Reality is their is no magic wand available to take those harms and losses away, so money is the only way we have to compensate and make an individual whole or at least balance the harms with compensation.

In a Missouri auto accident injury claim, can the defense (the auto insurance company) argue to a jury that the victim is not hurt as bad as they say they are because the other driver or passengers in the same vehicle were not hurt as bad? I believe the answer to that is no, however depending on the circumstances, some Judges may allow that evidence in for certain purposes. As an experienced St Louis injury lawyer, I address this issue before trial even starts through a Motion in Limine with the Judge, therefore, the Judge can rule on it before trial starts and not in front of the jury, as by that time the bell has already been rung.

Recently, we dealt with a motorcycle accident head injury case, wherein we represented the hurt passenger and the insurance company tried to claim that since the driver was not injured that the passenger was not injured. Not only does this argument make no sense, the law in Illinois is clear that argument cannot be made in front of a jury. "Generally. the details about the nature and severity of personal injuries to non litigants in automobile cases are not admissible." Martin v. Sally, 341 Ill. App. 3d 308, 318 (2nd Dist. 2003) (refusing to allow testimony regarding passenger injuries) (quoting Keil v. McCormick, 5 Ill. App. 3d 523, 526 (2nd Dist. 1972), concluding that reference in opening statement and subsequent testimony to lack of injuries to the defendant the two occupants of her vehicle, and the occupant of the plaintiffs vehicle was error. The issue involved was the injury to the plaintiff not the fact that the defendant and her passengers, in a different automobile were not injured."). See also, Vujovich v. Chicago Trans. Auth, 6 Ill. App. 2d 115, 126 N.E.2d 731 (1st Dist. 1955).

In J.B. Hunt Transport, Inc. v. General Motors Corp, 243 F.3d 441 (8th Cir. 2001), the district court excluded evidence of the minor injuries of the driver of the vehicle in which the plaintiff was riding in the front passenger seat. ld. at 445. The plaintiff argued that the driver's injuries proved that the seat of the vehicle in which the plaintiff was riding failed, given the fact that both of the vehicle's occupants were subjected to the same impact. Id. The Eighth Circuit determined that evidence of the driver's injuries was correctly excluded, explaining:

"We cannot say that [the driver's] injuries could be considered either substantially similar evidence or relevant to [the plaintiff's] injuries. First, it was undisputed that [the driver], unlike [the plaintiff], was wearing her seatbelt at the time of the accident. Second, because [the driver] was driving, she was able to anchor herself by grasping the steering wheel, which may have alleviated some of the impact. Moreover, the angle of impact differed between the two occupants leading to the varying degrees of injury."

The court noted that admitting similar-incident evidence "threatens to raise extraneous controversial issues, confuse the issues, and be more prejudicial than probative."

Continue reading "Missouri Trial Evidence in Personal Injury Car Accident Claims: Is Lack of Injury to Other Passenger or Driver Admissible to Discredit Plaintiff's Injuries? " »

Our St Louis injury law firm keeps most files in secured electronic format, greatly reducing our reliance on paper files which also makes accessing, storing, and producing files much more efficient and effective. Personal injury attorneys deal with a lot of medical records, particularly in medical malpractice and wrongful death cases. About seven years ago our law firm began digitizing most files and medical records. Then a few years ago many services popped up that provide electronic medical records to us for our clients, as more and more doctors and hospitals began keeping their records in digital format.

Depending on the case, but some personal injury cases involve boxes and boxes of medical records and those costs add up, but the Missouri legislature recently amended the statue regarding medical record retrieval costs. Until now, all records were subject to a $17.05 processing fee plus $.40 cents per page, no matter if the medical records were actually copied or just emailed in electronic format. So the law was forcing lawyers to pay medical providers $.40 per page for records that are simply emailed from a file. That can really add up, especially if the records are from a hospital stay which includes patient registration, nurse assessment, charts, monitoring records, notes, consults, etc ... a hospital stay can quickly turn into hundreds of pages of medical records.

Now there is another reason to get and keep medical records in electronic format, Missouri's legislature has amended Missouri Statute 191.227 with Senate Bill 62 stating the charge cannot exceed $25 no matter how many pages are in our injured client's chart:

"If the health care provider stores records in an electronic or digital format, and provides the requested records and affidavit, if requested, in an electronic or digital format, not more than five dollars plus fifty cents per page or twenty-five dollars total, whichever is less" Senate Bill 62

Therefore, electronic records now cost no more than $25 no matter how many pages are part of that particular record. Under the old law 1000 pages would cost around $420.00, even if provided in simple electronic format and not physically copied, now that same request is $25.00 ONLY if requested electronically. Costs of medical records are costs most personal injury lawyers in Missouri deduct from the final recovery as costs of the case, now this new law passes savings onto injury victims, assuming your injury lawyer can get away from the traditional paper records.

The costs savings is just one of many reasons to go digital with medical records. Personally, I have all my injury case files in electronic format, which allows me to highlight and bookmark pages electronically and quickly jump to them at a moments notice in a deposition or in the heat of trial without fumbling through stacks of paper. Makes it easier to send documents for injury clients to review or to send the documents to opposing counsel by email saving time, money, and trees.

Continue reading "Cost of Collecting Medical Records in Missouri, Capped at $25 for Electronic Records " »

Most people's understanding of tort reform is that it is stopping so called "frivilous lawsuits" and if they ever need the jury system, well, their case would be a good case and theirs could never be "frivolous". People buy the propaganda of doctors fleeing the state and undeserving people gaming the system. This is simply not true, and the tort reform advocates know it. They simply do not like being sued and have the money to buy politicians and change the laws. Then they scare the public with claims of rising health care costs and insurance costs, convincing them it is better to hand over their 7th Amendment right to a trial by jury, one of the basic founding fundamentals of the justice system in America. See St Louis Medical Malpractice Article: Medical Malpractice Myth "Too Many Lawsuits" Debunked by Harvard

A try to be apolitical as I believe both parties are misguided, however, now that election season is approaching, we are hearing from one particular candidate about tort reform as one of his top two talking points straight from his website. Really? in this day of economic uncertainty, two wars ongoing, jobless rates through the roof, national debt and one of his main talking points is tort reform.

Well, here is how well it has worked in Texas, not only has it shut the courthouse doors for most average people, but it is also costing everyone more money, that's right, the costs savings was a MYTH! An independent study of data on Medicare spending in Texas shows that for the years following the enactment of medical malpractice caps and reform costs have gone up outpacing the national average:

Not only has per person Medicare spending in Texas continued to exceed the national average, the data also show that such spending rose at nearly twice the national average (15.1% versus 8.7%) in the four years since the medical liability reform legislation was passed. Furthermore, before such "cost-saving" legislation went into effect, per person Medicare reimbursement rates in Texas were the tenth highest in the nation. In 2007, reimbursement rates in Texas had risen to the second highest. None of this is resounding evidence that tort reform has been successful in controlling health care costs.

See the graph below from Dartmouth Atlas of Health Care, "Selected Medicare reimbursement measures."

So, the Too may lawsuits and frivolous claims has been proven wrong time and time again, even by Harvard University. And the rising healthcare costs myth has been proven wrong by the Texas experiment in shredding individuals' 7th Amendment Right to trial by jury. Yes, you still get a jury, but they can decide very little, as all their judgment and decisions have been legislatively hogtied.

As a St Louis medical malpractice attorney, I have this conversation with prospective clients all the time. when I tell them they do not have a case because of the 2005 reforms, they cannot believe it and often say that was meant for frivolous cases, and their case is a good case. Once you have some skin in the game through the death of a loved one or serious injury as the result of a doctor's negligence, you realize tort reform is just plain wrong.

Also see, Missouri Injury Lawyer Article: "Doctor Speaks Out Against Medical Malpractice Caps"

I don't know about you, but I feel better about 12 individual citizens, like you and me, deciding my case rather than a politician years before deciding it for me to protect insurance company profits.

Trial Lawyers - Keeping the Court House Doors Open for Consumers and Individuals

In Missouri, the calculation of damages (money) for the same injury under general negligence law (i.e. injured in a car or truck accident) as opposed to the calculation under Missouri workers compensation (i.e. work related injury) are very, very different. As a St Louis injury lawyer that handles both workers compensation cases and general negligence cases, I deal with both ways of calculating damages routinely.

A common reaction I get from clients injured at work, is the disbelief that an injury, just because it occurs at work, can be worth less than that same injury under a general negligence theory, typically meaning it was caused outside of work or by a negligent driver, doctor, or business. However, the benefit to workers' compensation coverage is that liability (whose fault it is) does not matter. Even if it is the injured employee's fault (in most cases), you still get the same compensation. Additionally, in many cases if the work related injury was not the fault of a co-employee or your employer (i.e. a 3rd party not employed by the same company) then a 3rd party claim exists and the injured employee can recover under both work comp and negligence claims outside the work comp structure and through the jury trial system. See: "St Louis Work Comp Lawyer discussing Work Comp Claim and 3rd Party Liability Issues" Additionally, in certain situations, even if the injury is caused by a co-employee, sometimes you can pursue the co-employee for their negligence. Any liability the co-worker may have will be covered by the employer's general liability insurance coverage; so don't feel bad about making a claim against your co-worker, their covered. See"Missouri Work Comp Law - Courts Open up Pathway to Co-Worker Liability".

Calculating Damages in Missouri Personal Injury Cases (non work Comp)

Damages (money) for injuries under Missouri general negligence cases are determined by the amount of medical bills incurred (past and future), lost wages (past and future), prescriptions, property damage, other expenses attributable to the injury, and finally, pain and suffering. Pain and suffering is that uncertain dollar amount that a jury may award you for the pain and suffering of having to go through the entire ordeal and the future problems it will cause physically, emotionally and mentally. Except if it is a medical malpractice claim, under Missouri law pain and suffering in medical negligence claims are capped at $350,000. Missouri medical damage caps have not been fully challenged yet and it is still possible they could be found unconstitutional by the Missouri Supreme Court. See "Limits on Medical Malpractice Awards Constitutional? Missouri Supreme Court Signals .... Not Constitutional"

Calculating Damages in Missouri Work Comp Cases

Under Missouri workers' compensation, the employer's work comp insurance covers the medical expenses for your medical treatment, missed work pay or "TTD pay" (Temporary Total Disability Pay) for the days missed prior to the doctor releasing you to return to work, and then finally a final settlement for the ongoing disability. The ongoing disability is essentially the only amount the employee is awarded directly and is calculated using the Missouri "Permanent Partial Disability Schedule". This is a very specific calculation and does not take into consideration any pain and suffering. However, the Missouri Work Comp Second Injury Fund is also available for additional compensation in certain cases. See "Missouri Workers' Compensation Claims, Claims against the Missouri Second Injury Fund or 'SIF'"

Missouri's Division of Missouri Work Comp: State Website with information regarding workers compensation and explaining the process.

Regardless if you have a work comp or a general negligence case, the legal procedure and all the ways to maximize compensation for your injuries are very complex. If you need an experienced Missouri personal injury lawyer handling cases in St Louis, St Charles, Jefferson County, and all across Missouri and Illinois, call the St Louis injury law firm of Sansone / Lauber today.

As discussed in a previous St Louis bike accident lawyer article: "Avoiding Bike Injuries & Legal Liability at Intersections: Right of Way at Unmarked Intersections", bicycle accidents and injuries often occur at unmarked intersections. Bike accidents often occur at intersections controlled by electric signals as well. Having been a St Louis bike accident attorney now for about 10 years, I almost have never seen a situation where a cyclist blatantly ran a red light and caused a collision. Typically they have already entered the intersection and the drivers are anxious to go and do not see them.

Now some new laws give a much needed affirmative defense to cyclists accused of running red lights. But I caution my cycling friends, be careful at these intersections and use this privilege cautiously. Motorcyclists, bicyclists, and anyone operating a vehicle with 2 wheels, may have experienced the everlasting red light. That is because many electric signals in St Louis and throughout Missouri and Illinois are set off by pressure sensors, thereby allowing the light to remain green on the heavier traveled road until a vehicle approaches on the intersecting road and triggers the pressure sensor, changing the light from red to green. These pressure sensors often cannot be tripped by a motorcycle and almost never by a bicycle.

So is a bicycle rider doomed to sit at a red light until a car come up and trips the sensor? Until 2009, In Missouri at least, the answer was yes. There was no legal defense for a cyclist to run a red light, even if there is absolutely no traffic around and they have sat at a red light that was not going to change. In 2009, Missouri Bicycle Law was changed by Missouri Statute 304.285, "Red light violations by motorcycles or bicycles, affirmative defense, when", which states:

"304.285. Any person operating a motorcycle or bicycle who violates the provisions of section 304.281 or section 304.301 by entering or crossing an intersection controlled by a traffic control signal against a red light shall have an affirmative defense to that charge if the person establishes all of the following conditions:

(1) The motorcycle or bicycle has been brought to a complete stop;

(2) The traffic control signal continues to show a red light for an unreasonable time;

(3) The traffic control is apparently malfunctioning or, if programmed or engineered to change to a green light only after detecting the approach of a motor vehicle, the signal has apparently failed to detect the arrival of the motorcycle; and

(4) No motor vehicle or person is approaching on the street or highway to be crossed or entered or is so far away from the intersection that it does not constitute an immediate hazard."

As a St Louis bike injury lawyer, I believe this a fair law. The only part left for interpretation is what is considered an "unreasonable time"? I believe one could successfully argue to a Judge or jury that a unreasonable amount of time is once you realize the light is not going to cycle and there is no traffic in sight.

Another state, Illinois, is currently proposing a new law that would also allow cyclists (motorcycle, bicycle, scooter) the option of riding through a red light after waiting a reasonable time for the light to change.

Continue reading "Missouri Bicycling Law, Biker (Bike and Motorcycle) can go through Red Light Under Cirtain Circumstances, Illinois May Adopt Similar Bike Law. " »

A St Louis medical negligence lawsuit we have been working on for several years settled for over $900,000. The injured Plaintiff was seen by a St Louis doctor who performed a cervical nerve root block. See Negligent Pain Injection Lawyer. Within fifteen minutes of the procedure she was left partially paralyzed, fortunately, she has mostly recovered from her paralysis and was able to return to her full time job.

We believe that the negligent doctor caused the partial paralysis by allowing the medicine to invade an artery through a combination of negligent techniques. One, the dosage of the pain medication steroid was double the recommended amount, two, the operative technique was negligent as he failed to use tubing between the syringe and needle to minimize needle movement, and three, the basic placement of the needle prior to the injection was in a dangerous location. See St Louis Medical Malpractice Lawyer Article: "Missouri Medical Negligence - Cervical Pain Injection Hits an Artery - Med Mal causes Depo Medrol to go into Spinal Cord and Brain - Spinal Cord Injury and Brain Injury resulting in Partial Paralysis"

Despite our injured client's neurological deficits, she missed only a few months of work and was able to return to her job full time within months of the spinal cord injury. She incurred about $200,000 in medical bills as a result of the injury and no lost wages. Generally, arterial invasion by a steroid results in devastating injuries and death, our client was lucky that her injuries were relatively minor.

One of the essential requirements to successfully pursuing a medical malpractice lawsuit is retaining a good medical expert. See St Louis Medical Negligence Attorney Article: "Use of Expert Witnesses by Missouri Injury Attorneys to successfully pursue Missouri Injury Claims and Lawsuits" Not only do you need an expert to testify regarding liability or negligence (violation of the medical standard of care), but before a Missouri medical negligence lawsuit can even be filed you must have a certificate of merit under Missouri Statute 538.225 or else the medical malpractice lawsuit will be dismissed. In fact, before retaining our St Louis medical malpractice law firm, our client initially retained another personal injury lawyer, however, they failed to file a certificate of merit and her case was dismissed. Additionally, they decided not to pursue the case after consulting with a medical expert. After we received the file, we immediately retained a well known and qualified expert in the field of diagnostic radiology. In fact, through a little research, we found out the expert the previous attorneys consulted with is a well defense expert, so obviously he talked the case down and immediately defended the negligent doctor.

Medical malpractice cases are time intensive, difficult, and very expensive. Many lawyers claim they handle medical malpractice cases, however few can successfully pursue them with excellent results. Choose your lawyer carefully.

Continue reading "St Louis Medical Malpractice Settlement: $900,000.00 for Spinal Cord Injury after Negligent Pain Injection " »

Missouri is just one of many states working hard to correct problems associated with allowing bad medical doctors to continue "practicing" medicine. (See Post Dispatch Article: Missouri Law Targets Incompetent Doctors) Governor Jay Nixon signed House Bill 265, which allows the healing arts board the ability to act more quickly in response to medical malpractice and other complaints against physicians believed to be "a threat to public health". It also provides better transparency between doctors and patients.

This new law will allow open access to doctor's background information such as: complaints filed, suspensions, education, specialty certifications, and all disciplinary records. The law will also afford swifter action against Missouri doctors suspected of substance abuse and mental illness. Prior procedures dictated that any complaint of this kind would first be heard by the state administrative hearing commission - a process that could take up to several years before happening - then another hearing would be held by the healing arts board. If the board decided it was a plausible complaint, the incompetent doctor would be ordered to complete competency and drug testing before being disciplined. The new law passes over the administrative hearing and gives more power to the healing arts board to take quick action.

"Transparency" seems to be the new political ambition at all levels of government, lets see if the law actually has teeth when applied to the real world. In dealing with doctor transparency, they may be right - though, the better terminology would be accountability. The ultimate form of accountability is the patient's right under the 7th Amendment - right to a jury trial; which is being eroded away in this country under the guise of "tort reform", a topic for an entirely new and very long conversation.

The new law goes into affect August 28, 2011.

Helmets First gives away bicycle helmets to St Louis area children. They are holding their first fundraising ride on Labor Day. www.HelmetHustle.com

Helmets First!
6133 Delmar Blvd
St Louis, MO, 63112
(877) 506-1570
(618) 281-8393 FAX
www.helmetsfirst.com

This is a worthy cause to help encourage and promote bike helmet use by children. The most common injury related to bike accidents is head and brain injury. Unfortunalty, head injuries occur even with the use of helmets, however, the use of a helmet greatly reduces the severity of most head injuries. Instead of being a life debilitating injury, use of helmets often limits the head injury to symptoms of headaches and other minor symptoms which usually go away after a few weeks.

As St Louis personal injury attorneys, we see and handle a lot of cases involving traumatic brain injury (TBI). A competent brain injury lawyer will actively follow new bills that are introduced pertaining to insurance regulations which, in turn, greatly affect our injured clients with head injuries.

Recently Fox news published an article on the injustices surrounding traumatic brain injury cases. Brain Injury Patients Face Double Injustice -- Trauma and Mounting Bills Not only do patients suffer physical injury, but they must also deal with the surmounting medical bills that medical insurance will not pay. Example, Corey Beattie, 18 years old, was involved in a truck accident when she was the passenger in a vehicle hit by a truck. It took two hours for rescue workers to remove her from the mangled car. She had a broken neck and multiple fractures. The doctors said that her brain "spun within the frame of her skull". Corey's mother was informed that she would need at least one year of consecutive inpatient rehabilitation. But like so many others, her insurance would only cover 6 ½ months of rehab. She was released and sent to outpatient therapy. Research suggests that with a severe brain injury such as this, the brain needs this 12 month window to have the best chance of rehabilitation and regeneration. The brain surgeon was overruled by bureaucracy.

Insurance companies are notorious for refusing to pay the ongoing treatment needed to complete rehabilitation in TBI and other serious medical cases. A New Jersey representative is advocating that congress step in to correct this issue. His proposal is to have the Department of Health and Human Services make treatment of TBI a benefit under the Patient Protection and Affordable Care Act. He is suggesting that the government will be able to better determine the guidelines for what will and will not be paid with the intention that patients can get the ongoing care that they need. Whether or not this is the best solution, something needs to be done to fix this problem.

St Louis injury lawyer, Ben Sansone, has handled multiple severe brain injury cases to successful conclusions. Including just a few mentioned below:

$575,000.00 drunk driving car accident and brain Injury Settlement. Client was a passenger in the back of a vehicle struck by a truck driven by a drunk driver in Illinois.

A young boy that was struck in the head by a loose commercial door post while at school. The evidence shows that the school faculty were aware of the defective post the day prior but failed to repair or warn o the condition. This particular case is still pending, but we believe it is just a matter of time before the case settles favorably.

Head Injury from St Louis Auto accident. Minor physical injuries but client suffered post concussion syndrome (PCS) a minor form of head injury.

$500,000 settlement for St Louis construction worker struck on head with board and suffered a head injury.

Continue reading "Potential New Insurance Regulations related to Traumatic Brain Injury (TBI) " »