Missouri Injury Law Blog

Last year during a snow storm in St. Louis, my client was involved in a truck accident when she was ran off the road by a MoDOT snow plow on Highway I-270 in St Louis county. She was driving her car in the far right hand lane since she was going slow due to the weather. A snow plow came up behind her, sideswiped her car, and then kept on going and left her stranded on the side of the road.

The truck accident left several large orange paint streaks down the side of the victim's car. The pain was the same orange color as the snow plow orange. The reporting officer noted the orange paint and was unable to reach MoDOT for any response. The victim retained our St Louis accident attorneys and we were able to get MoDOt to admit that the snow plow in the area of the accident that night was reported as being damaged on the right side of the snow plow. Damage completely consistent with the auto accident our client reported.

Our client sustained injuries to her neck and back, reported to the emergency room and then followed up with her family doctor and received physical therapy for a few months. The victim fully recovered and incurred about $10,000 in total medical bills. Prior to filing a lawsuit MoDOT agreed to settle the truck injury claim for $85,000.00.

Personally, I was very pleased with the outcome of this case, we were able to get my client all the medical treatment she needed to fully and completely recover and then settle her case for over 8 times the amount of the medical bills without having to file a lawsuit. The victim int his case was a past client of ours, therefore, she knew to contact us immediately after being involved in an auto accident. Retaining an accident lawyer early on in your case is critical to successful and very favorable recoveries.

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According to an article in the St. Louis Post-Dispatch, the Missouri House passed two pieces of important legislation this week specifically aimed to overcome a veto by Democratic Gov. Jay Nixon earlier this year pertaining to Missouri work comp.

As they have passed the House, both bills now head over to the Senate which previously approved similar measures earlier in this year's legislative session. The House voted 86-66 for a bill that could reduce protections for employees who report wrongdoing in the workplace. The legislation limits "whistleblower" status to employees who report or refuse to carry out illegal acts. The bill goes further to gut existing protections by limiting who is allowed to receive whistleblower reports as well as capping the amount of punitive damages a whistleblower can recover if an employer retaliates.

In Missouri there is no comprehensive whistleblower statue. Instead, law has been made by court cases and whether a person can sue has been decided by judges on the basis of precedent. The sponsor of the recent bill, Rep. Kevin Elmer said it was designed to clarify rules for business owners by putting something on the books officially. Given that the bill is the result of legislative action, the statute would supersede the courts' earlier decisions.

Democrats in the legislature have spoken at length against the bill, arguing that it doesn't give workers enough protection to allow them to report serious problems. The Democrats also complained about the bill's exemptions for state and local government entities, including Missouri's public colleges and universities.

On the workers' compensation front, the House also backed a bill that would bar employees from suing co-workers for on-the-job injuries. This was also passed earlier in the year but vetoed by Nixon. Democrats also spoke against this bill, saying that the law would prevent employees from suing co-workers even for intentionally caused injuries.

The Majority Leader, Tim Jones, says that this is an additional vehicle that will be used to help overhaul Missouri's Second Injury Fund, an account which pays benefits to people with disabilities who sustain additional injuries on the job.

A spokesman for the governor said Nixon is negotiating with lawmakers about a workers' compensation measure, but he declined to comment further.

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

Source: "Mo. House passes whistleblower, work comp bills," by The Associated press, published at STLToday.com.

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

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Former House Speaker Newt Gingrich got an unexpected surprise when he visited the St. Louis Zoo recently. The presidential candidate decided to take some time before his speech to the National Rifle Association to go on a paid private tour and get up close and personal with a Magellanic penguin. One of the penguins decided that it wanted to get up close and personal with Gingrich too - by biting him on the finger.

Fortunately, a Band-Aid was enough first aid to treat the very minor injury. However, many other victims of animal bites are not so lucky. Animals bite millions of people across the United States every year, with dogs being the most common culprits. As a Saint Louis injury attorney, I have represented clients who have suffered both minor and severe injuries due to animal bites.

Under Missouri law, the owner of an animal that injures another person could potentially be strictly liable. When the owner of an animal is found "strictly liable" for an attack, that means the owner is at fault just by virtue of the fact that the attack occurred. Strict liability is found when both a) the animal had vicious or dangerous propensities, and b) the defendant owner had knowledge of the animal's vicious or dangerous propensities. One case went a step further, holding that the owner of a Doberman pincher should have known that his dog was dangerous.

Section 322.145 states that "the owner of an animal that bites ... shall be liable to an injured party for all damages done by the animal." Section 273.036(1) further elaborate with the following:

The owner or possessor of any dog that bites, without provocation, any person while such person is on public property, or lawfully on private property, including the property of the owner or possessor of the dog, is strictly liable for damages suffered by persons bitten, regardless of the former viciousness of the dog or the owner's or possessor's knowledge of such viciousness. Owners and possessors of dogs shall also be strictly liable for any damage to property or livestock proximately caused by their dogs. If it is determined that the damaged party had fault in the incident, any damages owed by the owner or possessor of the biting dog shall be reduced by the same percentage that the damaged party's fault contributed to the incident... (emphasis added)

In other words, the law does heavily favor the victims of animal attacks, so long as those victims did not provoke the attack. Thus, if you need more than a quick Band-Aid from an errant penguin's peck, there is relief available under Missouri law.

For more information about the state of animal bite law in Missouri, please look at this page. If you, a relative, or friend have been injured by a dog bite or other animal attack, call Saint Louis injury lawyer Ben Sansone for a free consultation at (314) 863-0500.

Source: "Penguin nips Newt Gingrich at St. Louis Zoo," by Jake Wagman, published at STLToday.com.

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St Louis accident attorneys, Sansone / Lauber, obtained a favorable settlement in Cape Girardeau County on behalf of a Scott County high school student who was injured after a loose door divider fell and struck him on the head when he was walking through a gymnasium doorway. The lawsuit settled for a very favorable $75,000.00, plus court costs, about two weeks prior to trial. The injured Plaintiff suffered a concussion and incurred approximately $5,000 in medical bills. The claim was made against Scott County School District. See : PETITION - dangerous condition - School_Redacted.pdf.

When making an accidental injury or negligence claim against a public entity, such as a pubic school, certain issues must be considered and investigated since public entities have certain tort immunity under Missouri law. See: Government Entity Liability for Dangerous Conditions. Specifically, you must determine if the accidental injury you are making a claim for falls under one of the exceptions to sovereign immunity, additionally, you need to look for other 3rd parties that may be liable if the sovereign immunity caps apply and the damages from the injuries may exceed those caps.

In our recent Cape Girardeau premises liability case cited above, the school district was unable to dispute that the Plaintiff was injured by a loose double door divider that fell and struck the Plaintiff in the head as he walked through the doorway during gym class. The Defendant, Scott County High School, and its employees, had exclusive control over the gym doors, including the post. Additionally, we were able to show that Scott County had actual notice the center divider was loose or had fallen out the night prior to Plaintiff's injury.

The night before the negligent head injury, a teacher had actual knowledge of the dangerous condition. The school nurse testified that she heard from school employees the center divider fell out of the doorway the night before at the basketball game. Additionally, another teacher that was at the game, testified she leaned against the center divider and it moved, then a spectator at the basketball game tightened it up with just his hands, no tools. That same teacher testified nothing else was done to that center divider and she did not notify anyone. Cursory investigation fo the doorway showed that hand tightening would not be effective, the fastener holding the center pole is a small Allen bolt that is smooth without anyway to grip other than using an Allen wrench or pliers.

The Plaintiff was sent to the emergency room and diagnosed with a concussion. One year after the head injury, medical records documented that the Plaintiff was still suffering from post concussion symptoms including headaches.

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After years of practicing as a Missouri & Illinois personal injury lawyer, I frequently see cases where employees suffer tragic accidents due to dangerous jobs. Sometimes, despite the best efforts of employers, these accidents happen because certain activities can never be made one hundred percent safe. Other times, an employer is so derelict in its duties that not only are private lawsuits inevitable, but the employer can find itself afoul of the U.S. Department of Labor.

That is the case with the workplace wrongful death at Bartlett Grain Company elevator in Atchison, Kansas. Back in October, six workers were killed in an explosion. Investigators in Kansas originally determined that the explosion, caused by grain dust, was accidental. However, on April 12, the federal government intervened. The Occupational Safety and Health Administration (OSHA) issued over a dozen citations and are seeking over $400,000 in fines. Criminal charges may be in the future, but that is a decision for the Department of Labor's Office of the Solicitor.

According to the Kansas City Star, grain elevator worker has become one of the most dangerous jobs in America, and is part of the increasingly hazardous agricultural industry. Deaths by suffocation in the elevators are "all too common."

U.S. Secretary of Labor Hilda Solis stated in a press release, "Bartlett Grain's disregard for the law led to a catastrophic accident and heartbreaking tragedy for the workers who were injured or killed, their families and the agricultural community." Criminal charges may be in the future, but that is a decision for the Department of Labor's Office of the Solicitor.

According to OSHA, grain dust is nine times more explosive than coal dust and Barlett did not perform sufficient preventative measures, nor did it have a sufficient plan in place in case of emergency. OSHA alleged that Bartlett allowed the grain dust to accumulate to dangerous levels. Further, Bartlett used compressed air to remove dust without first shutting down ignition sources, creating an incredibly volatile atmosphere. They also repeatedly started and stopped machinery and used electrical equipment inappropriate for an environment covered in grain dust.

OSHA described these acts as "willful violations." A willful violation is an act that is "committed with intentional knowing or voluntary disregard for the law's requirements or with plain indifference to worker safety and health." Bartlett Grain has been accused of five willful violations. The company has also been accused of eight "serious" violations, which according to OSHA are "hazard[s], violation[s] or condition[s] such that there is a substantial probability that death or serious physical harm could result."

Bartlett Grain president Company president Bob Knief issued a statement that the company "certainly look[s] forward to proving wrong OSHA's unfortunate citations and characterization."

If one of you or one your loved ones is injured in a workplace accident, you will need to an experienced St Louis county personal injury attorney on your side. Contact Ben Sansone today for a free initial consultation at (314) 863-0500.

Source: "KC grain company cited for violations in deadly Atchison elevator explosion," by Mike McGraw, published at KansasCity.com.

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Drunk driving injury lawyer Ben Sansone focuses on pursuing drunk drivers on behalf of injured clients and their families. We have handled dozens of drunk driving injury cases in Missouri and Illinois to successful conclusions. With the assistance of Sansone's partner, Gary Lauber, a former prosecutor, they have the experience and skill necessary to aggressively pursue drunk drivers in personal injury cases and wrongful death actions. See 2.3 Million dollar Judgment Obtained againt St Louis County Drunk Driver. Also see Drunk Driving Injury Lawyer Articles.

The Franklin County, Missouri Sheriff's Office wants to make sure during prom season the teenagers and other drivers on the road are safe and sober. Law enforcement agencies across the state are working with the Missouri Department of Transportation to crack down on underage drinking and driving as well as minors found to be in possession of alcohol between May 3rd and May 13th.

In Missouri it is illegal for anyone under 21 to possess or consume alcohol, yet teens make up an alarmingly large proportion of the drunk drivers arrested for having caused traffic accidents on Missouri roadways each year. Though most would not think so, many drunk drivers are under the age of 21.

From 2009-2011, there were 83 fatal crashes and 233 disabling injury crashes involving an alcohol impaired driver under the age of 21. Devastatingly, there were 94 people killed and 368 seriously injured as a result of these crashes.

Franklin County has specific reason to be concerned as it came in at number four in Missouri for traffic cashes between 2009-2011. In Franklin County alone there were 41 crashes involving drunk drivers under the age of 21. During the same two years there were four fatal crashes and four disabling injury crashes involving an impaired driver under 21.

Franklin County police officers as well as officers across the state will be stepping up enforcement of Missouri's Zero Tolerance Law. The law says that anyone under the age of 21 caught driving with even a trace of alcohol in their system will have their license suspended. "Drinking and driving is not worth the risk," said Leanna Depue, chair of the executive committee of the Missouri Coalition for Roadway Safety. "Zero tolerance means zero chances: Drive Sober or Get Pulled Over."

The consequences for such reckless behavior includes jail time, loss of a driver license, or being sentenced to using ignition interlocks. Insurance rates will also go up as a result and the perpetrator will have to shell out money for attorney fees and court costs.

In 2011 across the state there were 217 people killed and 867 seriously injured in crashes involving an impaired driver. As Saint Louis personal injury attorneys we routinely see the devastating aftermath of collisions caused by such drunk driving accidents. If you've been the victim of such an accident and need help navigating confusing legal waters, contact our skilled Missouri injury lawyers today.

Source: "Officers to Crack Down on Underage Drinking," published at eMissourian.com.

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With over a decade of experience handling personal injury claims, I have represented dozens of individual suffering from head injuries, including post concussion syndrome and more severe traumatic brain injuries. See Brain and Spine Injury Lawyer Articles. A head injury can be a slight as headaches and dizziness to severe as unconsciousness, visible injury to the brain, coma, or death. Brain injuries are need to be addressed medically and legally even when relatively minor.

One of the reactions to the recent awareness of how sever even perceived minor head injuries can become, the debate has begun about young children being allowed to play rough contact sports like football. Two of the world's leading experts on concussion related injuries disagree on the subject.

Any time a person sustains a head injury, there is risk of concussion. While a concussion may not sound too scary, the problem occurs in repeated incidents of concussions which can have serious long-term consequences. One especially troubling worry is that if an athlete, or a child, receives a second concussion before the first has fully healed, it can cause permanent injury or even death.

According to the experts, children who play football throughout high school may receive as many as 2,500 sub-concussive hits throughout their careers. A recent study found that the number of catastrophic brain injuries which caused permanent disabilities among high school football players increased to 13 during 2011. This alarming trend has researchers working on ways to make youth sports safer even if they don't agree on the best way to guarantee that safety.

The issue up for debate is whether the safety skills obtained by experiencing contact in the form of rough sports play early on in life is counterbalanced by the risk of injury caused by multiple concussions.

Boston University's Dr. Robert Cantu thinks that sports like ice hockey, lacrosse and tackle football should be off limits to kids under the age of 14 until rules are changed to limit risks of concussions and other injuries stemming from multiple blows to the head that so often come with the territory.

On the other side of the debate is Dr. Kevin Guskiewicz from the University of North Carolina. He believes young athletes need to learn how to deal with physical contact early on when they play against opponents who are the same age and size. Dr. Guskiewicz believes that such early exposure to proper safety techniques will ultimately lead to safer playing later in life.

Guskiewicz explains that "the youth league players generally are close to the same size and are about the same age. If you wait until the kids are freshmen in high school, you might have a 130-pound player competing with a 300-pound player. The forces can be tremendous. I believe it is safer for the players to learn at younger ages."

Cantu, who has treated a lot of youngsters with concussions, believes that it is absolutely critical to avoid repeated head injuries. "That's where Kevin and I differ," Cantu said. "I'm treating these children and I've seen them miss school for a week, a month, a semester, even a year because of post-concussion symptoms."

St. Louis personal injury lawyer Ben Sansone is an experienced Missouri injury trial lawyer practicing in all areas of personal injury including brain injury and medical malpractice. For information on how to protect your legal rights if you or a loved one has been seriously injured, call one of our Missouri personal injury attorneys today at 1-314-863-0500.

Source: "Concussion experts differ on safety in youth sports," by Tim Stevens, published at CharlotteObserver.com.

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Recently, St Louis injury law firm Sansone / Lauber secured a $760,000.00 settlement for our client who was sexually assaulted in her apartment. See Defective and Poorly Maintained Security Doors.

The parties involved in the settlement are being kept confidential to protect the identity of our client, however, I can say that the defendant was a St Louis area apartment owner that we maintained had knowledge of the crime levels in the area based on crime statistics available to them and reported crimes at the apartment complex. Despite the levels of crime the property owner allowed the common area security doors to remain in disrepair despite consistent complaints by the tenants.

Unfortunately, as a result of the inoperable security doors, a criminal was able to easily and quickly obtain access to our client's apartment making her an easy target for burglary and sexual assault. Several witnesses testified to the poor conditions and upkeep of the common area security doors as well as the apartment front doors and to the crime level in the neighborhood as well. There were constant complaints to management regarding the conditions and security concerns. Some issues were dealt with for temporary resolution and many issues were simply ignored. Several assaults and robberies took place against tenants and food delivery drivers.

In order to have a claim against a property owner, there must not only be a criminal act that causes injury, you must first establish a legal duty on the property owner to protect you from that criminal act.

ESTABLISHING A LEGAL DUTY TO PROVIDE SECURITY:

DUTY AS A MATTER OF LAW: Under Aaron v Havens.pdf there is a duty as a matter of law on a landlord to keep the common areas safe. In the Aaron case where a rape occurred after access by the intruder up the fire escape and through an unlocked apartment window the court stated "[i]f a private apartment can be entered through a window, injury to the occupants is foreseeable."

The scope of admissible evidence under Aaron is broad. Therein the Court held: "it is not necessary to allege that past crimes involving entry into unauthorized places are of the same general nature as the one which gave rise to the claim. If a burglar may enter, so may a rapist. To find a duty only the incidence of harm, not necessarily the quantum need be foreseeable."

In our case, we argued the Arron case applied as the building security doors and the apartment front doors were controlled by the owner according to the undisputed testimony of the witnesses. Thus, it is common area and according to Aaron there is a duty as a matter of law. Additionally, in our case the owner breached the duty by providing the locked doors and barely attempting to maintain them through cheap temporary fixes.

DUTY ESTABLISHED BY SPECIAL RELATIONSHIPS:

If the duty is not established as a matter of law, a duty can be imposed on a land owner based on special relationships. For a detailed discussion of the special relationships duty see Legal Elements and Issues Related to 3rd Pary Criminal Act Personal Injury cases in Missouri.

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Continue reading "$760,000.00 Settlement - St Louis Negligent Security resulting in Sexual Assault" »

A federal law that aims to reduce number of truck and commercial vehicle accidents and injury caused by distracted driving has recently gone into effect. The law, which took effect at the beginning of this year, affects nearly 4 million truck and bus drivers, plus millions of other commercial drivers who work for businesses both large and small.

The recently passed law prohibits commercial vehicle drivers from using hand-held cellphones while the vehicle is in motion. The ban applies to operators of commercial vehicles, defined as those vehicles weighing more than 10,000 pounds which cross state lines for business purposes or any other vehicle weighing more than 26,000 pounds which includes all sorts of vehicles from tractor-trailers to large delivery trucks.

The ban imposes stiff fines for drivers who violate the law. For each offense, violators face a civil penalty of up to $2,750. If a driver is a repeat offender, he or she can lose their commercial vehicle operator's license. Even more seriously, drivers who commit two major violations within a three-year period will lose their driving privileges for at least 60 days. If there are three or more violations within three years, the penalty is a suspended license for 120 days, something that will hit operators of commercial vehicles where it counts: their wallets.

Drivers are not the only ones who can be penalized under the new law; companies can be held responsible as well. Any company that allows or requires their employees to use hand-held cellphones while driving the company or other work-related vehicle can be fined up to $11,000. Holding the employers' feet to the fire is another method of ensuring that all steps are taken to encourage the safe operation of commercial vehicles. To comply with the law, many companies and organizations are scrambling to draft and implement internal policies prohibiting cellphone use while on company business.

However, as many Missouri personal injury attorneys can tell you, even the best plans to rid the roads of distracted drivers won't stop some from refusing to behave responsibly behind the wheel. The St. Louis injury lawyers at Sansone / Lauber believe that the best way to protect yourself against distracted driving by commercial vehicles is to pay special attention while driving and carefully watch the road ahead of you. 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: "Companies weigh risks of distracted driving" by Larry Copeland, published at USAToday.com.

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The trend toward the use of social media has permeated every aspect of our lives. The legal system seems to be following this trend. Defense attorneys have been successful in presenting social media posts and pictures as evidence in personal injury cases. They are using social media as a source of discovery.

Insurance adjustors and defense attorneys regularly search through information on social media websites. They are hoping to find evidence that will go against the opposing party's claim of injury. Personal injury attorneys are currently advising their clients to cancel their social media accounts. Apparently, setting their social media posts to private is not enough to keep their privacy intact. In fact, if a personal injury client posts anything to do with an accident on a social media website, it can be treated as evidence in court.

In the Pennsylvania case of Zimmerman v. Weis Markets Inc., the judge ordered the plaintiff to provide the court with the login information for his social media account. The court reasoned that since the public portions of his Facebook and MySpace accounts showed evidence of his injury, a discovery of the remaining private postings were likely to contain similar information. The court made this decision because the man had profile pictures of himself on Facebook and MySpace. In one of the pictures, he is shown wearing shorts that happened to expose a scar from his accident.

In the New York case of Romano v. Steelcase Inc., a judge entitled defense attorneys access to the private MySpace and Facebook pages of a plaintiff who claimed to be confined to her home because of her injuries. The profile picture on one of her social media accounts depicted her standing outdoors. The court decided that because the public portions of her social networking accounts contained evidence that was contradictory to her claims, the private portions of her accounts would likely yield additional contradictory evidence. The profile picture could have been months or years before the accident. The defense pushed the idea that the woman maintained an active lifestyle, and she was not seriously injured.

Personal injury lawyers are concerned about the recent court rulings. Old pictures and statements can be misunderstood as current or relevant to a court case. Even if someone were to remove a picture from their social media account, it can still be used against them in court. Clients should understand that defense attorneys will stop at nothing in order to defeat personal injury claims. Even when the pictures fail to prove a claimant has been dishonest about their injuries, they can still be used in an attempt to mar their character.

Information from social media sites can cause juries to make value judgments on plaintiffs. For instance, a picture that shows a plaintiff drinking and partying is a common tactic to sway a jury. Once the jury sees the picture, they tend to award the plaintiff less money. Due to the public profiles of many of their clients, Los Angeles personal injury attorney's have long been cognizant of the risks of poor public exposure during trial. While this isn't news for any personal injury attorney, the proliferation of social media information has increased the risk of accidental self-incrimination (or apparent incrimination).

Although the law is still evolving in this area, making any public communication about health or injuries is a mistake when proceeding with a personal injury claim. The information gleaned from social media websites can cause substantial harm to a claimant's credibility; ultimately, it can cause them to lose their case. Until the laws surrounding personal injury and social media are clearly defined, victims of personal injury should remove their social media accounts before filing a claim for compensation.

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If you are injured in a car accident or otherwise and your health insurance coverage is through a group plan with your employer (often referred to as an "ERISA" Plan), it has certain rights of recovery from your personal injury settlement for pay back of the expenses paid on your behalf for your medical care. Often these plans will try to claim 100% reimbursement (referred to as "subrogation"), however, they are usually not entitled to full reimbursement, and in some cases they are not entitled to reimbursement at all. This area of law can be very complicated, the concepts below apply generally to Illinois injury claims.

Subrogation allows the employer health insurance plan to "stand in the shoes" of the participant, in our cases the injured victim is the participant, to recover benefits paid by the plan and transfers to the plan the participant's right to recover from the at fault party and their insurer. This right to reimbursement (subrogation) is a contractual right that must be in the plan documents. Unisys Medical Plan v. Timm, 98 F.3d 971, 973 (7th Cir. 1996).

Important Issues to Consider regarding Plan's Ability to Recover:

The reimbursement language in the health insurance contract. Does it cover just medical expenses from the personal injury? Or does it cover any recovery arising from a personal injury action, such as lost wages, pain and suffering, etc ... ? This is important because if the plan's language is not broad enough it may only be able to recover from medical damages recovered. A broad plan provision for reimbursement from "any recovery relating to injury" or "any funds" creates a right of reimbursement from the participant's entire recovery, not just medical expenses. McIntosh v. Pacific Holding Co., 992 F.2d 882 (8th Cir. 1993).

Is the plan attempting to recover amounts billed or actually paid? An ERISA plan may only recover may recover only the amount it actually paid to healthcare providers, not the amounts billed, since the plan administrator must uphold its fiduciary duty to act solely in the interests of its participants. McConocha v. Blue Cross & Blue Shield of Ohio, 898 F.Supp. 545 (N.D.Ohio 1995).

COMMON FUND DOCTRINE

The most effective way to reduce the amount required to be paid back to the plan is use of the Common Fund Doctrine. "The common fund doctrine permits a party who creates, preserves, or increases the value of a fund in which others have an ownership interest to be reimbursed from this fund for litigation expenses incurred, including counsel fees." Scholtens v. Schneider, 173 Ill.2d 375, 671 N.E.2d 657, 662, 219 Ill.Dec. 490 (1996).

In other words, the injured victim hired a lawyer, went through the cost and expense of litigation, and therefore, the plan should share in that cost and reduce it claimed lien amount to reflect that cost.

The Illinois Supreme Court, in Scholtens v. Schneider, ruled that the the common fund doctrine applies to ERISA liens except when the ERISA plan explicitly provides otherwise. The Illinois Supreme Court interpreted both ERISA and the common fund doctrine in holding that the common fund doctrine applies to ERISA subrogation liens. The common fund doctrine provides that a subrogation claim is to be reduced for the pro rata share of the attorneys' fees and expenses incurred in creating the settlement fund. Additionally, the court rejected arguments that the Common Fund Doctrine is preempted by the ERISA law.

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Medical mistakes can happen for a variety of reasons: a patient could not be properly monitored while at the hospital, there could be a communication error between nurses and doctors, staff could not be up to par on training. If all those aren't scary enough reasons, a recent study found that some surgeons may have alcohol dependency issues which impacts their ability to properly practice medicine.

According to a study that was recently published in the Archives of Surgery, out of the 7,197 surgeons who answered a survey regarding their mood, lifestyle and work, 1,112 met the criteria of a person with an alcohol dependency issue. This equates to slightly more than 15 percent of those who participated in the survey having potential alcohol abuse problems.

And while this is certainly not a huge pool of respondents to gather data from, the truth is that more than 25,000 surgeons were actually included in the survey. However, the majority chose not to answer the questions.

"Surgeons who drink more heavily are potentially less likely to respond, which might underestimate the prevalence of alcohol abuse," according to one professor of surgery and a member of the Journal of the American Medical Association who wrote an editorial to accompany the published study.

While the lead author of the study did take time to note that it is still very rare for a person to be injured due to a surgeon being intoxicated, an earlier study that was published in April found a connection between excessive drinking and medical errors.

That earlier study looked at eight surgeons and 16 medical students and found that those who were hung-over from a previous night of drinking made 19 errors on a virtual reality procedure conducted in a safe lab setting. Those who did not consume alcohol the previous night only made eight errors on the virtual reality procedure.

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: "Survey Reveals that 15% of Surgeons have Alcohol Dependency," by Christine Hsu, published at MedicalDaily.com.

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For many, the idea of a child being injured due to a defective or dangerous product is obviously devastating. But sadly, the truth is that there are a number of products - including children's toys, bedding and car seats - that are recalled every year due to safety issues. However, what is truly frightening is that many parents may never even hear of the recall and then continue to use the dangerous product.

About 40% of recalls last year, or 121 of 310 overall, involved children's products, according to a recent study titled "Kids In Danger." The same study notes two recalls of bunk beds and infant video monitors involved deaths. The Consumer Product Safety Commission's (CPSC) complaint database includes many reports of children injured or killed by recalled products, says Kids In Danger's Nancy Cowles.

According to the recently released Kids in Danger report, there was actually a decline in the number of recalls in 2011. However, even though there was a 24 percent decrease, injuries and other negative incidents actually rose 7 percent last year.

It turns out that part of the problem is most likely due to the fact that when a recall is announced, only between 15 percent and 30 percent of the products are actually sent back or fixed. Of course, there are some rather larger higher-profile recalls that make the news and end up having a larger send back rate, but many smaller recalls do not end up getting as much attention.

Additionally, it seems part of the problem is that when there is a recall, stores have a hard time always tracking down the purchaser to let them known about. Disturbingly the average recall response rate for child safety seats is only about 41%, while about 75% of owners of cars and light trucks take their cars back for recalls, says data and analysis firm Lindsey Research Services. Car recalls are bolstered by mandatory registration while retail recalls suffer from not being able to locate shoppers. The ability to find someone depends on whether they paid with a card or whether they have a customer loyalty account. Online retailers often have the easiest time contacting consumers.

Members of loyalty programs at Toys R Us and Babies R Us get e-mail alerts about product recalls; others can sign up on the stores' websites to get notices. Amazon and Costco notify customers when products they buy online are recalled. Those not members of such programs can take action and sign up for recall notices on CPSC's and NHTSAs websites.

If you or someone you know has been 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: "Recalls of unsafe kids products down but often ignored," by Jayne O'Donnell, published at USAToday.com.

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Recently we settled a negligent hydraulic hose repair and thumb injury case pending in Perry County Missouri. The thumb injury occurred as the result of a hydraulic tractor hose that sprung a small leak and shot a very thin and strong stream of hydraulic fluid into my client's thumb. Hydraulic oil injection injuries are deceiving because the injury seems minor at first, however, the hydraulic oil is very toxic and quickly causes injury to spread.

A hydraulic fluid injection injury is probably the most dangerous injury that can result from a hydraulic hose failure. Mainly because the injury appears benign at first, so the injured person often dismisses it and no urgent medical care is sought. Injected hydraulic oil is highly toxic, so in addition to the physical, and often appearing minor, physical cut, the oil literally poisons you.

The most important things to remember: NEVER touch a pressurized hose with your hand and if you suspect an injection injury has occured, get to an emergency room right away!

In our case, the victim was the owner of a tractor. One of the tractor's hydraulic hoses became frayed near the end of the hose. The metal mesh under-layer began to show through the thick rubber outer-layer. The owner became concerned about the integrity of the hose and took it to the local hardware store for replacement. While at the hardware store they told him they could repair the hose rather than replace it, they would cut the frayed part off and reattach the hose connector at the end. The repair was made, however, a few inches of the hose still showed some metal coming through; the hardware store employee insisted it was safe and blew into it using his mouth to show no air was leaking through.

The owner reattached the hydraulic hose and within minutes a very strong and needle thin stream of hydraulic fluid came from the frayed area and shot into the owner's thumb.

The hardware store was liable as they represented themselves as a competent and professional hydraulic hose repair and/or replacement shop. The tractor owner relied on the employee's guarantee that the repair was done correctly, despite his concern.

This was a very unique case as hydraulic injuries resulting on negligent repair are very rare and there is little industry literature or material addressing how hydraulic hoses must be repaired. Therefore, the legal theory was a general negligence claim, no established standards or rules were violated, just what we claimed to be general negligence by the hardware store through its employee.

Continue reading "$250,000.00 Settlement: Hydraulic Fluid Injection Injury resulting from Negligent Hose Repair " »

As a St Louis injury lawyer and cyclist, I have written several articles about about bicycling injuries and Missouri law as well as bicycle safety in Missouri. Through participation with several Missouri organisations we keep and eye on developing law in Missouri and across the country related to cyclist safety.

Just this week, a new law went into effect in Pennsylvania requiring drivers to leave at least a 4 foot buffer when passing cyclists. Clearly such a law is met with a flurry of conflicting opinions from fairness to enforceability. To me, regardless of the enforcement problems, it is an important law to have for public policy reasons, it is a reminder to drivers to give cyclists a much room as reasonably possible. OF course there are situations where a 4 foot buffer is not available because a road may be narrow or other conditions, well in that case the driver should give as much room as reasonably possible. My drive home everyday is down Clayton road and a stretch of it that is very popular with cyclists in St Louis. Most drivers give cyclists plenty of room when passing, however, I often see drivers just barely giving enough room, either out of negligence or spite, in either even it is dangerous.

In situations involving car versus bike collisions violation of the law can be helpful evidence and used to prove negligence or liability on behalf of the driver that struck the cyclist. Currently, Missouri's law states that a vehicle must maintain a "safe distance" when passing a bike. Missouri version of the law states:

"The operator of a motor vehicle overtaking a bicycle proceeding in the same direction on the roadway, as defined in section 300.010, RSMo, shall leave a safe distance when passing the bicycle, and shall maintain clearance until safely past the overtaken bicycle."

See St Louis Missouri Bike Lawyer Artilce "Missouri bike accident case settles for three times the amount of medical bills" Quoting Missouri Statute 304.678.

I have used this law in several bike accident cases to support the biker's case that the driver was at fault for passing too close to the bike. Is it true the 4 foot buffer will be difficult to enforce, yes, but that does not mean it should not be a law. It is a another State taking a positive step toward recognizing bicyclist safety is an important issue that must be enforced.

Continue reading "Driver's Required to Keep 4 Foot "Buffer" when Passing Bikes " »