Missouri Injury Law Blog

Under Missouri personal injury law, government and public entities are immune from certain causes of action, however, if a dangerous condition exists on the property then the government or public entity is liable. See St Louis Premise Liability Lawyer Article: "Missouri Premise Liability Cases Against Government Entities - i.e. park, zoo, injuries at public school, etc ..."

Even when they are liable, Missouri law affords a limit on the amount an injured person can recover from these entities, basically, $300,000 per injured person, adjusted for inflation. See Missouri Statute 537.610(2), stating:

The liability of the state and its public entities on claims within the scope of sections 537.600 to 537.650, shall not exceed two million dollars for all claims arising out of a single accident or occurrence and shall not exceed three hundred thousand dollars for any one person in a single accident or occurrence

However, what if the public entity has more than $300,000 in insurance coverage? Is that a waiver of the sovereign immunity limit of $300,000? Recently the court addressed that very issue in Farm Bureau Town & Country Ins. Co. of Missouri v. American Alternative Ins. Corp. In the Farm Bureau case, which involved a Missouri car accident with serious personal injures, the issue was addressed of whether or not a public entity (a fire protection district in this particular case) waives the sovereign immunity limit of $300,000 by purchasing insurance coverage in excess of that amount. The analysis of the case has wrote:

"Section 537.610.1 allows political subdivisions of the state to purchase liability insurance for tort claims and waives sovereign immunity `only to the maximum amount of and only for the purposes covered by such policy of insurance' or self-insurance plan.'" Kunzie v. City of Olivette, 184 S.W.3d 570, 574 (Mo. banc 2006). If the entity "maintains insurance that covers these types of claims, then it will have waived its immunity under section 537.610 for the specific purpose of and to the extent of its insurance coverage." Id. This waiver through the purchase of insurance effects "an absolute and complete waiver of all immunities." Id. The insurance effects such waiver when, "the plaintiff's claim falls within the purposes covered by the defendant's policy." Hummel v. St. Charles City R-3 School Dist., 114 S.W.3d 282, 284 (Mo.App. E.D. 2003). Here, it was stipulated that "[a]s a result of the . . . accident . . . various claims were asserted against [Mr.] Day" and that the amounts were "reasonable and were necessary to settle the claims against [Mr.] Day." .

Consequently, the Fire District waived sovereign immunity to the limits of the AAIC policy. This case may open the door to getting around the sovereign immunity limits in Missouri personal injury cases, and each case will be very fact specific, particularly, the language of the insurance policy and how it addresses, if at all, any waiver of the limits.

The above case involved a fire fighter and an automobile accident. Currently, St Louis brain injury lawyer, Ben Sansone, is handling a case against a Missouri school district after the center pole between the double door to the gymnasium was secured negligently and fell and struck a 13 year old boy in the head as he walked through the door. The insurance policy is in excess of $300,000, so the issue of the waiver of limits will come up in our case as well. This is a pending case and I will update this article if this issue us addressed.

In April 2008, my client was a passenger on a motorcycle when the driver lost control of the bike and crashed while going around a turn. See St Louis Personal Injury Attorney Article: "Illinois Uninsured Motorcycle Accident Injury - Uninsured Coverage as a matter of Public Policy". We were able to overcome multiple factual and legal hurdles in this case and end up with an excellent result for our injured client.

First major obstacle was that our client was knocked unconscious by the motorcycle crash and the driver, in an obvious attempt to avoid the police, took her to a hospital several hours away where his mom worked as a nurse. Needless to say, the police were never contacted and an incident report was never done. This was a major problem because if the accident is not documented the insurance company will immediately claim it never happened. By the time my firm was contacted, the local Belleville police refused to take a report , claiming they cannot take a report since it had been two months since the accident.

After several months of investigation, we were able to track down the driver of the motorcycle and also identify the owner. The driver was incarcerated and refused to speak with our office. however, through the course of the case we were able to establish that the owner did not have insurance on the motorcycle, and therefore, the driver was an uninsured motorist. This allowed for the claim to be made through our client's uninsured motorist coverage through Shelter Insurance. For a discussion about uninsured (UM) and under-insured (UIM) motorist coverage, see St Louis Car Accident Lawyer article: "Missouri Underinsured and Uninsured Insurance Coverage & Which Policy Applies Mine or the Owner of the Car?"

The issue of uninsured motorist coverage was a little complicated in this case as our client was a Missouri resident and her uninsured motorist coverage was through a Missouri policy which dictated venue and choice of law in Missouri. However, it was more beneficial to have the case in Belleville Illinois, primarily because the likely jurors are more likely to be Plaintiff friendly as opposed to the Missouri venue we may have been forced to be in.

Knowing this, Shelter tried to get the case dismissed and force us to file in Missouri and in their home county, Shelter relied on the Illinois Insurance code that requires that all insurance policies "renewed, delivered, or issued for delivery in this state [Illinois]" contain a mandatory arbitration clause with respect to uninsured motorist claims. See 215 ILCS 5/143a. However, the policy was not renewed or delivered in Illinois, therefore, the mandatory arbitration did not apply; therefore we filed a Response to the Motion to Dismiss and the Judge ruled in our favor and Ordered the case to remain in Illinois by denying Shelter's motion to dismiss.

Initially, our client thought she had a total of $50,000 in Missouri UM coverage, however we were able to identify additional UM coverage through other insured vehicles and raised the UM limit to $150,000 through stacking the polices. For information about stacking UM coverage see St Louis Motorcycle Lawyer article covering Stacking: "St Louis Missouri Motorcycle Accident and Injuries - Driver Inattention and Struck Motorcyclist when Changing Lanes - Uninsured Motorist Claim"

In the end the case settled for $130,000, our client did not expect the case to be worth anywhere near that amount and was very happy with the outcome. This settlement was the result of persistent legal work and investigation to fining all possible theories of liability and insurance coverage available.

Medicare liens and other healthcare liens play an important role in personal injury cases and need to be addressed early on in the case and handled properly to limit the amount of the lien. See St Louis Personal Injury Law Article: "Medicare recovery against Personal Injury Awards - Injury cases Held Hostage by Medicare"

In the case of Wilson v. State Farm Mutual Automobile Insurance Company, No. 3:10-CV-256-H, 2011 WL 2378190 [2011 U.S. Dist. LEXIS 63430 (W.D. Ky., June 15, 2011), the United States District Court for the Western District of Kentucky held that an auto insurance carrier was not acting in "bad faith" by withholding payment of car accident settlement check pending determination of Medicare's potential lien and payment amount required to satisfy that lien.

In the car accident case mentioned above, the plaintiff filed an uninsured motorist claim and the case was settled for the auto insurance uninsured motorist coverage's policy limits. However, the insurance company would not pay the settlement until after it obtained Medicare's reimbursable payment amount. The injured driver sued the insurance company claiming that the delay was bad faith.

The court ruled that the withholding of payment was not bad faith. The insurance company could be held liable by Medicare if they made the payment to the Plaintiff and then the Plaintiff never makes payment to or satisfies Medicare's lien. Since they were open to potential legal liability the court ruled they did not act in bad faith.

Factually, the above auto accident case involved the plaintiff who was a passenger in a truck that was involved in a car crash. The plaintiff was injured and Medicare paid some of his accident related medical bills. Since the at fault driver of the other vehicle was uninsured, the plaintiff filed an uninsured motorist lawsuit against his insurance company, State Farm. The auto insurance company agreed to settle the case for the uninsured motorist policy limits.

State Farm attempted to determine Medicare's conditional payment amount, which is the amount they will accept to satisfy any lien they have against the case. The plaintiff refused to help get the Medicare reimbursement amount determined and demanded that State Farm tender the settlement check. Well, clearly this issue is now resolved by the court as the bad faith claim by Plaintiff failed. Showing the importance of getting liens under control and amounts determined early on in a case in order to facilitate a smooth and quick payment to the injured client for their personal injury.

Medicare liens are just one of the dozens of issues that need to be handled by a professions and once of the reasons retaining a qualified and experience personal injury lawyer early on in your case is so important. See St Louis Car Accident Attorney Article:"I Was Injured in a Missouri Car Accident, Why Do I Need to Hire a Personal Injury Lawyer?"

Continue reading "Auto Insurer Withholding of Car Accident & Injury Settlement because of Potential Medicare Lien - Bad Faith? " »

Not only am I a bike accident injury lawyer, but I have also spent hundreds of hours and thousands of miles on a bicycle around the St Louis area. I have clients that come to me after being hit by a car while on a bike and I have friends and people I ride with who tell me stories about close calls and some about being hit by cars as well. There are a few common ways drivers hit cyclists unintentionally; see St Louis Injury Attorney Article: Common Causes of Bike Accidents and How to Avoid Them.

Right-of-way at intersections is commonly misunderstood and one of the legal issues of who is at fault when dealing with bicycle accident cases. More accidents occur at intersections not monitored by traffic signals. Keenly aware that most of us snoozed during our driver's education class, here is a refresher course on proper intersection protocol. When two or more vehicles (bicycles included) arrive at an intersection at the same time and there is neither person nor sign in place to indicate whose turn it is to go; the person to the right always has the right of way. When two or more vehicles arrive at an intersection at separate occasions, whoever gets there first gets to go first.

Bicycle accidents involving intersections represent a small majority of personal injury lawsuits. But when they do arise, several of the same defenses are used: cyclist failure to yield, unable to see cyclist because of too dark of clothing, disregard of right-of-ways, speeding through intersections, rolling stops, and riding in the wrong lane or wrong part of the lane. All of these things create comparative negligence or full negligence on behalf of the cyclist. Thus properly yielding at intersections is required not only to hopefully avoid injury, but also to have a strong case against a negligent driver in case you are injured in a bike crash.

Do not give the negligent driver's defense team any excuse to blame you for the accident. Cyclists have enough trouble with juries as most people on a jury drive cars and a few ride bicycles. And as most cyclists know, drivers are sometimes reckless or hostile towards a cyclists right to use a road, those jurors are no different and there cannot be any accusation that the cyclist ran a stop sign or did not follow the rules of the road that drivers of cars are required to follow. I have personally seen it at a trial, one time I even had the reporting officer throw in a comment about cyclists causing problems by not obeying the rules of the road or wearing bright clothing. Under Missouri law, this was an improper comment and the trial judge properly struck the comment from the record and advised the jury to disregard the comment, however, you cannot unring the bell.

Continue reading "Avoiding Bike Injuries & Legal Liability at Intersections: Right of Way at Unmarked Intersections " »

Working for a cyclist and a personal injury attorney I have become well aware of the dangers of bicycling on the roadways and the risk of being injured by inattentive drivers. See St Louis Bike Accident Lawyer Article, discussing common causes of bike accidents.

People toss around the phrase "this is my right" so heedlessly, that they not only forget what it actually means to have a right, but in doing so they have managed to squander the very conviction of the word. Furthermore, it appears that a strong belief in one's right primarily manifests itself when filing a personal injury lawsuit. At that time, everyone clamors about to prove their rights have been violated in some way which, in turn, caused injuries and pain and suffering so severe that it can only be healed with a Band-Aid generally made of dollar bills. Indeed, compensation may be, and typically is, the correct solution. However, having a clear understanding of one's rights is crucial to any motorist wishing to have a better chance of survival on the roads - I believe more specifically applicable to cyclists - as well as a better chance of winning your bicycle accident case.

I've been reading a great book on the legalities of bicycling, aptly named Bicycling & The Law, by Bob Mionske, J.D. In fact, Mr. Mionske summarizes this thought completely in a chapter wholly dedicated to the rights and duties of the cyclist. He states, "...duties are the flip side of rights; with rights come duties", and "your right to the road is not absolute, nor is theirs - you owe a corresponding duty to every other person not to infringe upon their right to the road, just as every person owes you the same duty."

You should know exactly what your rights and duties as a fellow driver are. You have a duty of care. This is to say that you, as a cyclist, will not impose an unreasonable risk of harm onto another person/driver. You have the duty to allow other drivers to conceivably assume that you will obey all traffic laws and not intentionally put them at risk of injury; just as you have the right to assume the same from those same drivers. As a part of this right, if another driver violates this duty of care, you may hold them liable by filing a bike injury lawsuit.

As stated in a previous blog, another principal of cycling is to know your state's laws. You can easily find Missouri's bicycle laws (http://mobikefed.org/statutes) on the web. This is only a general overview, but it is important to hire an experienced attorney when discussing specific issues such as: assumption of risk; following too closely; proper stops; intersection crashes; and bike crashes involving suspected DWI offenders, just to name a few.

As a St Louis injury lawyer handling St Louis medical malpractice lawsuits, I see the continued attack on the legal profession and my injured clients from people and organizations with the knee jerk reaction of claiming medical negligence cases are somehow inherently wrong and that juries and the legal system routinely overcompensate claimants. However, the statistics show this is an urban myth, likely believed by many people because of political affiliations or as the result of a very effective and concerted effort by the malpractice insurance companies to put these falsehoods out there.

According to a Medical Malpractice study by Harvard University and Published in the New England Journal of Medicine, the "frivolous lawsuit" argument is overblown:

"The researchers analyzed past malpractice claims to judge the volume of meritless lawsuits and determine their outcomes. Their findings suggest that portraits of a malpractice system riddled with frivolous lawsuits are overblown. Although nearly one third of claims lacked clear-cut evidence of medical error, most of these suits did not receive compensation. In fact, the number of meritorious claims that did not get paid was actually larger than the group of meritless claims that were paid. "

The Harvard research team sampled 31,000 medical records and found that one out of every 25 patients was injured by doctors. Of those injured, only 4 percent filed lawsuits. In another study conducted by Harvard School of Public Health and two other foundations, they found that of 1,452 medical malpractice lawsuits filed, 90 percent did show medical injury. A quarter of these claims were fatalities. Only six cases resulted in what could be called a "frivolous lawsuit"; meaning that compensation was paid, but no injury was identified.

A much bigger issue than "frivolous lawsuits" was that 236 malpractice cases were dismissed by the court despite proof of doctor error and some injury to the patient. Only 1,050 of the 1,452 cases were determined to have been decided correctly.

As we see by this small summary of a very lengthy study, healthcare issues of insurance rates, costs, and the myth of "defensive medicine" cannot be contributed to medical malpractice lawsuits. Many different hospitals and health centers are reworking their procedures to ensure better treatment, thereby decreasing mistakes, injuries, and ultimately lawsuits.

An example of this is the University of Michigan Medical System. Their restructuring of their procedures have resulted in half the number of lawsuits filed against their facilities and physicians. A policy of admitting fault and owning up to their mistakes rather than hiding mistakes from patients.

An important issue in a St Louis car accident injury claim, or any personal injury claim, is causation and proof of damages through medical testimony. The legal and medical professions both play major roles in a car accident lawsuit. You need a good personal injury attorney and you need a doctor that is willing to back you up and testify on your behalf. See previous article by St Louis injury lawyer Ben Sansone: Proving Medical Damages in a Missouri Personal Injury Case and The Sudden Onset Rule in Missouri Auto Accident Claims.

The plaintiff (injured party bringing the case) has the burden of proof, meaning they must prove their case before a jury can find in their favor. So the plaintiff's car accident lawyer will put on evidence that the accident was the defendant's fault and then medical evidence, through doctor testimony, that the Plaintiff is injured from the accident, current state of their injuries, and likely future problems.

Oftentimes, Defense counsel for the insurance company will send the Plaintiff for an IME (Independent Medical Examination) especially when there were pre-exisitng and related injuries or the defense disputes causation.

But what if the defense does not do an IME and does not call any doctor to dispute causation, yet the lawyer argues causation at trial to the jury? As a St Louis personal injury lawyer, I have run into this situation a few times and I argue to the jury to draw an adverse inference from their failure to bring evidence to the trial but still argue that defense.

This argument to the jury about the failure to bring in a doctor to support their causation defense is supported by Missouri case law. In Hemann v Camolaur, Inc., 127 S.W.3d 706 (Mo Ct. App WD 2004), the Plaintiff's injury attorney argued to the jury in closing argument that the defense failed to call a doctor or provide any evidence to support their defense of causation. However, this is a fine line that needs to be walked by a personal injury trial attorney; if the argument jumps from pointing out the lack of evidence to telling the jury to actually draw an adverse inference from the lack of evidence, a court could determine that the argument went too far and was too prejudicial.

The above argument and many others need to be made at an injury trial and the extent you go with each argument depends on the facts of the case and the particular judge that you are in front of. To what extent a lawyer can make many of these trial arguments depends on the judge as the extent a lawyer can make certain arguments or pursue a certain line of questioning oftentimes lies within the discretion of the trial judge. For example, as discussed above, make an adverse inference argument about failure to call certain witnesses without actually asking the jury to draw an adverse inference.

Continue reading "Personal Injury Trials: Proving Damages and Arguments to the Jury About Medical Testimony or Lack Thereof " »

As a St Louis injury lawyer, I believe it is important to clarify, with my personal injury clients, the rights Medicare may have against their injury claim. A crucial issue when settling a personal injury case, that many people may not realize, is payback to Medicare or the requirement of Medicare Set Aside if the injured client is a medicare recipient or is expected to receive medicare benefits in the near future. Medicare demands a set aside of money to cover future medical costs medicare may have to payout in the future as a result of the injury caused by a negligent party.

The extent Medicare can recover or demand a set aside is often litigated. For example, a recent decision clarified Medicare has no recovery rights in Missouri wrongful death claims. St Louis Injury Lawyer Blog re: Medicare Recovery of Wrongful Death Benefits, discussing the Bradley v Sebelius case.

Another recent decision was fought by personal injury attorneys against medicare and the decision has affects for my injury clients in St Louis and across Missouri and Illinois. The court in Haro v. Sebelius determined Medicare was overreaching and found no statutory authority to support a direct action against a personal injury victim's attorney, except to the extent they are recipients of settlement proceeds. The court acknowledged the obvious: Medicare is putting personal injury lawyers in a quandary with their clients that is not supported by the statute. Thus medicare cannot hold settlements hostage by requiring personal injury attorneys to either turn the settlement money over to Medicare or hold the settlement money in trust while the lien is being disputed.

Now it appears the contractors that handle the Medicare recovery of injury awards have suspended issuing rights and responsibly letters and demand letters for payment. MAybe while they try to go through congress to get around the Haro decision. This causes problems for injury lawyers as we cannot issue our client's funds before Medicare liability is determined. In fact, in most cases the insurance company for the negligent party (ie. driver that causes a car accident) refuse to issue settlement checks without written confirmation from the Medicate contractor about their lien.

Currently, I am handling a St Louis nursing home injury case, the nursing home is ready to settle, however, Medicare has not informed me of what they are claiming is the Medicare lien against any recovery. The nursing home's insurance company is not going to issue the settlement check because they could be liable if the liens are not satisfied. The problem is, it take several months for Medicare to tell you what their lien is! Thus holding hostage the settlement for any client that is a medicare recipient, mainly the elderly.

Continue reading "Medicare recovery against Personal Injury Awards - Injury cases Held Hostage by Medicare" »

When involved in a bicycle accident St Louis injury lawyer Ben Sansone has a few pointers to follow to ensure that you are covered should you need to pursue a personal injury lawsuit. See Also, St Louis Injury Law Article: Common Causes of Bike Accidents.

First, you must know the Missouri bicycle statutes. As a cyclist, it is important to follow the laws set in place just as motorist should. There are a lot of activist groups working to place stricter laws on motorists, more lenient laws on cyclists, and road compensations to benefit bikers. However grand the motivations are, we all know you cannot regulate or legalize common sense into people. Sometimes motorists and cyclist alike just don't pay attention for a split second and an accident occurs. If planning on riding a bike on a main road, having knowledge of what you can and cannot do on a bicycle should be a necessity before even purchasing a bike for that purpose.

Even spandex clad, serious bikers have a place to carry their identification and medical insurance cards. If you are involved in a crash, it is smart to have this information readily available to exchange with the police, other driver, or medical provider - should you be injured.

As with a motor vehicle crashes, do not discuss the whys and wherefores of the accident with anyone other than the police. Do not admit blame or blame the other driver. Contact a personal injury bike accident attorney. We have a lot of clients that call us to handle their cases after trying to negotiate with the responsible party's insurance company themselves. More times than not, statements made by the injured client, however flippantly made, are used by the insurance company against the cyclist to deny payment. In the same sense though, any statements made by the negligent driver can be used to benefit your claim.

Try to get names and contact information of any witnesses, as these may be needed during your lawsuit if a question of responsibility arises - which it undoubtedly will.
Follow up with a medical provider. Even if you are not in need of immediate ambulance transportation, go to the ER or your primary care doctor for a follow up visit. You may not feel the full effect of the crash until 24 to 48 hours after the accident. It is important to determine if there has been any internal damage done that will become problematic later.

Continue reading "Common Causes of Bike Accidents and Tips from a St Louis Injury Lawyer of What to do After a Bike Accident" »

A Missouri workers compensation lawyer filed a subpoena on behalf of his client, the injured worker, to get the video tape of the injury his client sustained. Presumably to rebut the typical defense allegation that the injured employee is faking. Not surprisingly, the defense tried to prevent the production of the surveillance video, because the video would show the employee was legitimately injured and take away their bogus defense.

At the trial level, the Missouri work comp judge ruled "[i]t is clear in [Section 287.215] that videotapes, motion pictures or visual reproductions of an image of an employee are not discoverable by employee." Thus preventing the injured employee's attorney from obtaining the video of the injury. The case was appealed and the circuit level agreed that the video should be turned over as it is a statement as defined by the discovery rules and there was substantial need, and thus discoverable. The case was appealed to the appellate court where not only was the circuit courts ruling upheld, but the appellate court ruled that the substantial need portion was not required, the video is a statement and thus is discoverable, even without substantial need.

"We need not consider whether Feltz demonstrated a "substantial need" or "undue hardship" because such proof was unnecessary to obtain production of the surveillance video pursuant to Rule 56.01(b)(3).3 In McConaha, the Supreme Court expressly held that Rule 56.01(b)(3), applied through Section 287.560, permits the discovery of surveillance videotapes as a "statement" without the need of a showing of undue hardship. 979 S.W.2d at 189-90."

Full Workers Compensation Opinion - Feltz v. Ford, WD Missouri 5.2011

Continue reading "Surveillance Video Discoverable in Missouri Workers Compensation Claims " »

In Missouri and throughout the county ERISA Liens are becoming more complicated and more common in car accident and other personal injury settlements. Essentially, if you are injured in a car accident or have an other actionable personal injury claim, and your health plan is an employer funded health plan and qualified under ERISA, the plan can sometimes circumvent State anti-subrogation laws. For more on health insurer subrogation, see: Personal Injury Settlement in Missouri: Can Your Health Insurer Demand Payback for Medical Expenses?

What does this mean to a personal injury victim in Missouri? When your auto accident or other injury claim settles your injury lawyer needs to make sure: (1) if any qualified ERISA plan has a valid lien, and if so, (2) to minimize that lien to maximize your recovery.

Important issues an injury attorney must investigate before resolving a claimed ERISA Lien include making sure the ERISA Plan's contractual language actually even create a lien against the personal injury settlement; the current state of law regarding ERISA Plans and what it is in your jurisdiction; equitable defenses, including the make whole doctrine and the pro rate sharing of losses. For a detailed analysis of the effect ERISA plans have on personal injury cases and eight ways to deal with them see Eight Ways to Defeat or Minimize ERISA Claims, by Roger Barron. Eight-Ways-Article - ERISA PLANS.pdf

See: Dont Lien On Me.pdf - For detailed information on liens and personal injury settlements and judgments.

Continue reading "Dealing with ERISA Liens When Settling Personal Injury Cases" »

A Missouri personal injury lawyer must prove liability and damages to succeed in a personal injury claim. Liability is whether or not the negligent driver violated a duty, i.e. drove too fast, failed to keep a lookout, or violated various other rules of the road. That violation must be the cause of the damages to the victim. In most cases, causation is obvious and easily proven, but it sometimes can be a difficult issue.

With regards to Missouri Automobile Negligence, it is necessary to prove "causation" or that the negligent party is the "actual cause" of the accident and injuries sustained. To do this, it must be shown that there would be no injuries but for the negligent party's action. If it is possible to take that action out of the scenario and the result is still the same, it is incorrect to say that there is actual causation.

Another aspect of causation is that the Missouri auto accident injury must be the "proximate cause" of the negligent driver, meaning the injuries sustained were a foreseeable consequence of the negligent party's action. Peoples v. Conway, 897 S.W.2d 206 (Mo.app.1995). Meaning: did the act cause a succession of injuries other than the initial one. Are the subsequent injuries the "natural and probable" outcome of the original negligent act? The difficulty in proving proximate causation is to know where the stopping point is. Finding the fair and reasonable degree of separation can become a gray area. See Wilkerson v. Williams, 141 S.W.3d 530 (Mo. Ct. App. S.D. 2004). Luallen v. Reid, 58 S.W.3d 50 (Mo.App.2001) shows that negligence need only be a contributor to the injuries sustained, not the sole cause. To establish proximate causation, it is "sufficient that it be one of the efficient causes thereof, without which the injury would not have resulted."

Continue reading "Proving Causation in Missouri Car Accident Claims and Lawsuits" »

As a personal injury lawyer, one of the most common injuries I see are back injuries; some of the more severe include disc bulges and herniated discs. Disc injuries are most commonly found in the low back and neck. As a Missouri work comp attorney, I often see clients who need a lumbar laminectomy, especially for injured workers who do a lot of heavy lifting. If the laminectomy or a discectomy is not successful, a spinal fusion surgery may be necessary. See Missouri work comp injury articleSpinal Fusion after St Louis Construction Site Injury.

What is the difference between a disc bulge and herniation?

A disc bulge is when the disc moves or bulges outside of the normal space between the vertebrae that it normally occupies. Disc bulges often push on nerves and cause pain and discomfort. Generally, disc bulges are treated with physical therapy and spinal pain injections, also referred to as steroid injections. See Missouri Personal Injury Lawyer Article: Spinal Injection and Medical Malpractice.

A herniated disc is when there is a break in the outer layer of the disc which causes the disc to become deformed and leak the internal fluid. In addition to the physical effect on the injured victim's back alignment, this leaking fluid can damage the spinal cord or nerves resulting in more pain. Herniated discs can be caused by a traumatic injury such as a car or truck accident, motorcycle accident, or work related injuries.

Most of my clients who have back injuries do so as the result of a Missouri car accident caused by a negligent driver. After a car accident occurs, typically people will visit the emergency room. However, back injuries such as disc bulges or disc heriations are commonly not treated at the ER other than receiving a prescription for pain and muscle relaxers. It is important to follow up with a doctor and have back injuries treated. Back pain may be an aching muscle, but it may be a more serious injury that needs to be treated.

Continue reading "Common Back Injuries from Car Accidents and Work Related Injury " »

Recently, an Illinois House committee voted to abolish the Illinois workers compensation system. Could this proposed bill become pass and become law and what would that mean for injured workers in Illinois?

Anything is possible, but I doubt Illinois work comp will be abolished. If it were, it would mean big changes to how work related injuries are handled and how workers are compensated. Under the current Illinois work comp laws, fault for the injury is generally irrelevant, as long as the injury is work related, the injured worker is entitled to work comp benefits. If Workers' Compensation was completely dismantled, injured workers would be forced to go through the civil courts and would likely be required to prove negligence or fault by another party to be successful. Additionally, that process is much slower and immediate benefits would not likely be available to the injured employee.

On the other hand, money awards would not be limited by the current work comp regulations which limit the value of injuries brought under work comp and dictate compensation and prevent the injured worker from filing a lawsuit against their employer for any negligence. Instead damages would be left to a jury and evidence of medical bills, injuries, and symptoms would be submitted to a jury just like in a personal injury case. This would likely lead to larger damage awards to injured workers than what they currently receive under the work comp system.

Proposed Senate Bill 1933, Illinois Work Comp Repealed

St Louis Post Dispatch article about Work Comp in Illinois

Continue reading "Injured at Work? Illinois Work Comp System Under Attack" »

In premise liability ("slip and fall" cases), oftentimes the issue of "subsequent remedial remedies" comes up. Meaning, repairs or improvements made to the premises after the injury occurs. See Missouri Injury Lawyer Article: Evidentiary Issues in Slip and Fall Cases Under Missouri injury law, it is oftentimes difficult to get subsequent remedial measures into evidence in slip and fall cases. However, in Missouri product liability personal injury cases, it is much easier to get subsequent remedial measures into evidence. For example, was the product flaw corrected and do the subsequent models sold have that correction? Those corrections or modifications can be used as evidence at trial in product liability cases in Missouri.

Missouri law allows evidence of subsequent remedial measures in Missouri strict liability lawsuits, and the courts have stated:

"[T]hat in strict liability cases, post remedial measures may be relevant. In strict liability cases, fault prior to the accident is not material. Instead, the question is whether or not there was a defect in the product when the plaintiff was injured. Subsequent repairs can be probative of this fact." See Pollard v. Ashby, 793 S.W.2d 394, 403 (Mo. App. E.D. 1990).

The Federal Rules of Evidence are not as favorable as the Missouri rule on this point, however, for proper purposes this evidence can be introduced in Federal cases as well. Federal Rule of Evidence 407 states that subsequent remedial measures are admissible for "proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment."

Continue reading "Using Evidence of Subsequent Repairs or Remedial Measures in Missouri Product Liability Cases" »