Of course, the AMA and other tort reform groups immediately criticize the decision as damaging the quality and access to health care for all. It is easy to deny victims justice through "tort reform" until you have been one, I guarantee, none of those proponents have ever had a family member or close friend who has been a victim of malpractice, because their tune would change very quickly.

The Court made a very logical and reasonable decision concluding that the caps violated the separation of powers clause of the Illinois Constitution because the legislature cannot make case-by-case determinations, separations of powers concerns would be violated by the “legislative attempt to mandate legal conclusions.”

There are already mechanisms to prevent frivolous lawsuits and excessive awards through judiciary powers on a case by case basis, they are called, motions to dismiss, summary judgments, a jury, remittitur, etc ...

The courts are constitutionally empowered, and indeed obligated, to reduce excessive verdicts where appropriate in light of the evidence adduced in a particular case. But reducing damages by operation of law, without regard to the specific circumstances, is unconstitutional. Quite frankly, many legislators and tort reform groups will not be happy until medical malpractice cases are completely barred, which is one of the main purposes behind the caps.

Of course, the AMA and other tort reform groups immediately criticize the decision as damaging the quality and access to health care for all. It is easy to deny victims justice through "tort reform" until you have been one, I guarantee, none of those proponents have ever had a family member or close friend who has been a victim of malpractice, because their tune would change very quickly.

The Court made a very logical and reasonable decision concluding that the caps violated the separation of powers clause of the Illinois Constitution because the legislature cannot make case-by-case determinations, separations of powers concerns would be violated by the “legislative attempt to mandate legal conclusions.”

There are already mechanisms to prevent frivolous lawsuits and excessive awards through judiciary powers on a case by case basis, they are called, motions to dismiss, summary judgments, a jury, remittitur, etc ...

The courts are constitutionally empowered, and indeed obligated, to reduce excessive verdicts where appropriate in light of the evidence adduced in a particular case. But reducing damages by operation of law, without regard to the specific circumstances, is unconstitutional. Quite frankly, many legislators and tort reform groups will not be happy until medical malpractice cases are completely barred, which is one of the main purposes behind the caps.

Illinois Medical Malpractice Caps Unconstitutional - RELATED ARTICLES:

Chicago Sun Times - State Medical Malpractice Caps Unconstitutional

Medical Malpractice Caps Are Not the Answer - Chicago Tribune

While drunk driving related Traumatic Brain Injuries are high there are measures that can be taken to prevent such incidents, the most important being don’t drive when impaired by alcohol or any other mind altering substance. Drunk driving is illegal in all 50 states and due to the recent increased enforcement of these laws TBI incidences have been on the decline. Nonetheless precautions should always be taken to reduce the likelihood of a drunk driving accident.

July 2008, a California ER doctor was driving to work and apparently caused two cyclists to wreck their bikes, seriously injuring them. One biker had to have 90 stitches to put his face back together and the other one also had to undergo surgery for his injuries. Bicycle accident attorneys and cyclists all over the globe have been chiming in on this case since it began. I have read countless articles and blogs on this case and it seems to come down to two questions....did he have road rage and did he “slam on his brakes”? Intention. The good doctor says he did not – on both accounts – though his 911 call kinda says otherwise.

As usual, a couple of points bother me about this case. One: because of either the idiot doctor or the idiot cyclists – or a combination of the two - we are all now going to have even more laws crammed down our throats. Superior Court Judge Scott T. Millington described this as “a wake-up call” and suggested that the “Government must be made aware of the dangerous conditions existing in our city streets and the threat of injury to cyclists”. Government is aware – that is why we have the laws we do such as mayhem, assault with a deadly weapon, etc. By the way, these are the same charges Dr. Thompson was convicted of. If the doctor did in fact “slam on his breaks” to “teach them a lesson” (a quote he later denies saying) then he should have been convicted of assault with a deadly weapon etc. – as California law states. If he was simply aggravated because, once again, cyclist were not following the laws - ultimately putting drivers and their passengers lives at stake - and decided to stop to obtain names/photographs, by which causing a horrible accident – with no malice - does that merit 5 years in prison? I’m not going to bring in drug dealers and OJ at this point. The prosecutor in this case dramatically ended her examination of Thompson by stating, “you could have drove on, but you didn’t”. Even I can think of a thousand counterarguments as to why that really has nothing to do with the situation – other than for a dramatic feel good effect – but she does have a point on the “be a responsible grown up” argument.

Two: “share the road” does not only apply to drivers of motor vehicles. It is supposed to include all transportation devices. The fact that “pedestrians have the right away” does not give me greater freedom to walk whenever and wherever I please. I still have to be cautious and abide by the rules, a.k.a. laws. Unfortunately, some cyclists’ sense of entitlement, which enrages most vehiclists’ sense of driving, has tainted the injured parties claim. They admittedly were not obeying the laws. They ticked off a guy who, at least in the beginning, was obeying the laws, and a horrible accident was the outcome. Are the cyclists not just a bit responsible simply because they were injured?

I drove a motorcycle for years. It was a love/hate thing. I loved the bike but hated the motorist that thought since they were bigger, they could push me around. Most drivers just do not pay attention. In fact, they believe that it is mainly the responsibility of the two-wheelers to watch out for everyone else. Most drivers think that because it is on two wheels, as opposed to four, it can move out of the way faster. Not necessarily true – nor necessarily the point. Most drivers are more likely to exhibit road rage against bikers rather than vice versa. This is ironic, considering bikers are more likely to die when they get hit by drivers rather than vice versa. Ultimately, vehicles do not “share the road” either. Every day, driving to and from work, we see evidence of this. Again, the childish entitlement and arrogance that says you have more of a right to get home faster, be in that lane first and are more important than someone on two wheels yields devastating results.

As a two-wheelin member of society, you have rights. You have access to an experienced bike accident personal injury attorney when those rights are violated. You also have to obey the laws. Vehicles – mind your P’s and Q’s. When you bump a biker, it hurts them and ultimately you a lot more than having to patiently wait an extra minute or two, to pass.

Today, the Supreme Court heard the arguments from both sides regarding the constitutionality of the medical malpractice damage caps in Missouri. I was unable to be there to observe, but the initial reports are that the judges focused on whether or not the damage caps violate the principle of open access to the courts. This is a very complicated issue best explained by constitutional law scholars, however, in short, the tort reform law takes away the jury's ability to fully decide a case which in turn denies access to justice for injured victims.

Link to the Missouri Supreme Court Site allowing Access to an Audio File of the Oral Arguments and Summarizing the Case in Detail

Above link will also take you to an audio file of the oral arguments.

Brief Submitted by Plaintiffs arguing against the Damage Caps on Missouri Medical Malpractice Actions.

The legal arguments made by Plaintiffs include:

1. The Revised Cap on Non-Economic Damages Differs Significantly From the Prior Cap

2. The Legislature Lacked a Rational Basis for Enacting the Revised cap

3. There was no malpractice liability crisis in Missouri.

4. Increases in malpractice liability insurance premiums were not caused by increases in tort liability; moreover, malpractice premiums were not high by historic standards and constituted a small percentage of the costs of operating a
medical practice

5. There was no evidence that doctors were fleeing Missouri, whether due to liability concerns or for any other reason

6. The supply of licensed physicians throughout Missouri has increased steadily over the last 45 years, both in net numbers and in relation to the Missouri population

7. The number of high-risk medical specialists was rising—not falling—in Missouri in 2005

8. The Legislature knew—or at least had been told—that lowering the cap on non-economic damages would not be an effective response to the perceived “crisis” and that such a cap would be quite harmful to malpractice victims.

9. The Revised Cap Violates the Missouri Constitution as follows:

i. Amended § 538.210 Violates the Equal Protection Clause of the Missouri Constitution, Article I, Section 2

ii. Amended § 538.210 Violates the Prohibition Against Special Legislation, Article III, Section 40

iii. Amended § 538.210 Violates the Due Process Clause of the Missouri Constitution, Article I, Section 10

iv. Amended § 538.210 Violates the Right to Trial By Jury, Article I, Section 22(a)

v. The Right to Trial By Jury, Properly Understood, Includes the Right to Have a Jury Determine the Amount of Damages, And that Determination Cannot Be Overridden By Legislative Decree

vi. Amended § 538.210 Violates the Separation of Powers, Article II, Section 1

(1) Special Relationship or Circumstances:

As stated above, for a Missouri personal injury claim based on landowner liability for the criminal act of another, there must be a special relationship or circumstances between the landowner and the victim. The special circumstances or relationship are decided by the court, not the jury, and are based on the facts and circumstances of each case.

Examples of how a special relationship established between apartment owner and tenant or guest for a Missouri personal injury claim for injuries arising from third party criminal act:

(A) Landlord made contractual or other representations or assurances to the tenant concerning security;
(B) Landlord had notice of potential danger because there have been previous instances of crimes of similar character on the premises;
(C) Landlord exposed the tenant to an enhanced risk of crime, and the landlord had notice of the risk due to the past instances of crime;
(D) Landlord retained the right to exclusive control of the security mechanism (i.e. outer security doors, window locks, other reasonable and ordinary security measures.)
(E) Landlord was negligent in maintaining the door and lock through which Plaintiff’s assailants gained access to her residence.

Missouri injury cases discussing special relationship or circumstances:

Stubbs v. Panek, 829 S.W.2d 544 (Mo Ct App. W.D. 1992)
Missouri personal injury case for third party criminal act involving a landlord/tenant relationship. A duty existed as the landlord retained the right to control the security door and was notified of its need for repair.

Brown v National Supermarkets Inc., 679 S.W.2d 307 (Mo. Ct App. E.D. 1984)
St Louis personal injury lawsuit for third party criminal act and injury occurring in business parking lot.

Vittengal v. Fox, 967 S.W.2d 269 (Mo App W.D. 1998)
Missouri personal injury claim from third party criminal act, in this case the court of appeals decided no special relationship was established based on the facts of the case and landowner was not liable for assault. I agree with this case finding, the landowner simply could not be expected to prevent this criminal act, under the facts of the case the Missouri personal injury lawyer simply could not plead facts proving there was faulty security or other negligence by the landlord.

Aaron v Havens, 758 S.W.2d 446 (Mo 1998)
St Louis personal injury case wherein the court found a special relationship because the fire escape allowed a criminal to climb up to a window and balcony doors, both which had faulty latches and locks. There was evidence that the landlord had knowledge of these conditions and failed to act.

Ambiguities in insurance policies are construed in favor of the insured, this is because the insurance company is the one who drafted the policy and any ambiguities or mistakes must favor the insurer or victim as they did not draft the policy.

In the above mentioned Missouri Supreme Court case the court ruled that a Shelter Insurance Missouri auto policy excluding and including certain amounts or policy limits for total uninsured motorist coverage was ambiguous and therefore unenforceable. In one portion of the policy it guarantees additional coverage for Missouri uninsured motorist claims and then under another provision attempts to limit it.

For the full opinion regarding ambiguous UM policy provisions see Rice v Shelter.

Debra Derousse v. State Farm Mutual Automobile Insurance Company, Missouri Supreme Court - SC90093.

Missouri Statute requires uninsured motorist coverage to cover damages caused by owners or operators of uninsured motor vehicles for "bodily injury, sickness, or disease" See Mo Statute 379.203.1

In the above Missouri Supreme Court case it was determined that mental injuries are included as the personal injury plaintiff's lawyer plead that her mental injuries were a sickness under the Statute and the Court agreed that mental injury is a sickness.

This case stemmed from a St Louis motor vehicle accident wherein a body was ejected from a car, his the Plaintiff's windshield and rolled off and came to rest just outside her door. She opened the door and saw the dead body, additionally, she knew the victim which caused even more emotional distress. her emotional distress manifested itself into physical pain, loss of sleep, depression, nightmares, etc. The full Missouri personal injury uninsured motorist opinion.

Oftentimes, personal injury claims can be settled favorably prior to a personal injury lawsuit needing to be filed. However, this is an example of a case that the insurance company and I cannot agree on the amount of damages as I believe strongly that my client's several painful nasal surgeries, past and future pain and suffering, and loss of his sense of smell are much more valuable than what they want to pay.

Therefore, personal injury lawyer Ben Sansone of Sansone Law in St Louis Missouri, recently filed a MacCoupin County Illinois products liability claim against the manufacturer of the log splitter and other parties involved in the design and marketing of the defective product. A detailed list of the defective designs making this log splitter a dangerous product when put to a reasonably anticipated use are laid out in our Illinois products liability complaint, described here.

Other examples of personal injury product liability / dangerous product cases our firm has handled or is currently handling:

Illinois Wrongful Death Lawsuit - Products Liability, Illinois Wrongful Death Claim, and Illinois Workers Compensation

Illinois Wrongful Death and Products Liability Lawyer - Work Related Death leads to Illinois Worker's Compensation Case and Products Liability Personal Injury Lawsuit

St Louis Missouri Products Liability Lawsuit - Eye Injury - Caused by Unsafe Toy Manufactured in China

There are many arguments in favor of the caps, mainly a hatred for trial lawyers based on years of tort reform propaganda. However, a simple fact, trial lawyers are the only group in the United States that represent and fight to protect the rights of the future injured. People that have never experienced medical malpractice are not concerned about those rights, as people do not foresee themselves as ever having that problem and buy into the tort reform propaganda of doctors fleeing, insurance rates increasing, and trial lawyers bringing merit-less cases. If a personal injury lawyer brings a merit-less case they will soon be out of business, as those cases are thrown out of court or lose in front of a jury, costing the personal injury lawyer tens of thousands in out of pocket expenses and 1000s of hours of lost time they will not be compensated for. Any good persoanl injury lawyer only pursues legitimate cases.

I cannot tell you the countless times people, that have generally though of themselves as for tort reform, that experience death or serious injury in their family as a result of medical negligence, very quickly change their tune, realize the inequities of the current system in Missouri, and get very angry. The life of a spouse, child, or parent is now capped at $350,000, that is what Missouri legislature says your family member's life is worth. On top of that, if the Missouri medical malpractice insurance company is looking at a worst case scenario of $350,000, they will fight legitimate cases tooth and nail, as the risk of financial loss has now just flown out the window. As all Missouri medical malpractice insurance policies are at least $500,000 but the vast majority are 1 Million or more per Missouri law.

Finally, 4 years after the institution of the caps, the Missouri Supreme Court will hear a case challenging the constitutionality of those caps. See: Post dispatch Article of 12/6/2009 by Tony Messenger - "Limits to jury damage awards to be debated by Missouri Supreme Court". In his article the arguments over the caps and sample cases are laid out in detail. I refer you to this article as I could write dozens of pages discussing this Missouri personal injury topic.

When you or a loved one is injured in an accident or hurt in some way by the wrongful actions of others, you may have a personal injury case on your hands. This means that you can sue the person who was responsible for your accident or misfortune and ask a jury to award you a certain sum of money for all the losses you have suffered and the pain you were forced to undergo. But is this case worth your time and energy? Will the outcome be satisfactory? Or are you going to be in a worse position than when you started at the end of the case? Your personal injury case is worth fighting if:

• You have a strong case: (Legal Liability) When you know that you’re not in the wrong and when you can prove this fact, you could file a personal injury case. While it’s true that juries have awarded millions in damages to a woman who was stupid enough to pour hot coffee on herself, most panels award money only when they know the case is airtight and that you’re in the right.

• You have a good lawyer: When you have a skilled and able lawyer on your team to fight for you, you know that you have a good chance of winning the case. A qualified personal injury attorney who is well versed and has experience in personal injury cases could analyze your case, put together the facts and ensure that he/she does all they can to win.

• You have the time to dedicate to a lengthy trial: Some complex personal injury cases could go on for some time and you may have to put your life on hold till they’re over. This means revisiting the accident in your mind every day, a feat that is going to be difficult especially if you’re still suffering nightmares from the horror of the accident. You also have to give up your source of income and devote all your energies to the cause of your case, no matter how long it drags on.

• You don’t pin all your hopes on the outcome of the case: While you may win a huge amount of money, you could also end up with nothing. So don’t pin all your hopes on the jury awarding you a large sum in compensatory and/or punitive damages, because even if it does, an appeal could take it all away from you. You will have to spend some money from your bank balance, because even though your attorney is paid on a contingency basis (a percentage of your settlement), there may be other incidental expenses that you have to bear.

• Take a settlement when it’s good enough: If the opposition offers you a reasonable settlement, take it and end the legal battle at the earliest. If you’re greedy for more, you may end up with nothing except wasted time and efforts. Talk to your lawyer and other well-wishers before deciding to accept or reject a settlement.

To know if you have solid grounds for a personal injury case, seek out a lawyer and discuss your case at the earliest. The longer you wait, the colder the trail of evidence and harder to prove that you are responsible for your injury and condition.

St Louis Personal Injury Lawyer Benjamin Sansone's comments on the above article:

While I agree with most of the above article, my Missouri personal injury clients and Illinois personal injury clients do not have to expend costs or expenses in their case. Also, while some complex cases, i.e. Missouri wrongful death claims or Illinois medical malpractice claims involve a lot of the client's time, most Missouri and Illinois auto accident, slip and fall, premise liability, or other personal injury type cases actually require very little of the personal injury client's time.

One aspect of the article above that I strongly agree with, do not pin your financial hopes and future on money you expect to recover from your case. While 99.9% of my Missouri and Illinois personal injury clients see a good to excellent recovery, do not make financial plans that rely on a future recovery. This inevitably will put yourself in a financial bind and then your financial needs will dictate what you want out of the case and when, which often times compromises the case. The value of a personal injury case depends on many different categories of recoverable damages, one factor that does not determine the value of your case is your financial wants and needs in life.

These cases are egregious especially when the injury could have been avoided by simply repairing faulty security doors or doing simple other preventative measures. Recently, a jury returned a verdict of $54 million ($5 million compensatory damages and $49 million punitive) resulting from the rape a a patient at a health services company. This amount may seem excessive, however, the victim will never collect anything near that amount. But what that verdict did do was send a message to large corporations that they need to be concerned about the safety and security of the "little people".

Other sample cases similar to our St Louis rape and personal injury lawsuit are discussed in the Missouri personal injury blog article linked to above.

Prior to this ruling the issue was whether or not the second injury fund subrogation case needs to be heard in the Work Comp courts or the State Circuit Courts. The Missouri Supreme Court's ruling was based on the premise that “the [second injury] fund’s common-law subrogation interest does not arise under the worker’s compensation act.” The Missouri work comp courts only have the authority to determine issues under the Missouri workers’ compensation act, so the authority for subrogation cases lies with the circuit court.

Subrogation occurs when a personal injury case is pending against a 3rd party that caused the workplace injury, the second injury fund uses subrogation to recover some of what they paid out to the victim under the work comp settlement which is separate than any Missouri personal injury settlement or judgment.

Recently a Franklin County jury returned a massive Missouri wrongful death verdict stemming from a death resulting from a drunk driving collision. Sansone Law has handled multiple drunk driving personal injury cases and often the likelihood of these massive verdicts facilitates very favorable settlements in favor of our clients.

Our prior Missouri and Illinois drunk driving personal injury settlements and ongoing cases:

Illinois drunk driving lawsuit - settled for policy limits

$575,000.00 Settlement - Traumatic Head Injury resulting from Illinois drunk driving collision

Good Samaritan injured by Missouri drunk driver, ongoing St Louis personal injury lawsuit

Four Illinois teens severely injured in Illinois drunk driving collision - personal injury lawsuit filed.

Drunk Driving accident case referred to Sansone Law for personal injury lawsuit and trial

Auto dealer vehicle involved in drunk driving accident - Personal injury claims of negligence, recklessness, and negligent entrustment

5 Reasons to Hire a Personal Injury Attorney:

It’s tough when you’ve met with an accident, one that has not just left you with physical injuries but also caused deep emotional and psychological scars as well. How do you make the people responsible for your situation pay accordingly? Even if you’re not the kind who exacts revenge, you need some form of compensation for your medical expenses and for any loss of pay that you may have suffered because of time taken off from work. So it’s wise to file a personal injury case, after consulting a trusted attorney of course.

Now you may feel that hiring a personal injury attorney is a waste of time, either because you want to try your own case or because you feel that just any attorney would do as opposed to one who is specialized in dealing with such cases. You may want to save yourself the associated costs, but even so, there are reasons to hire a personal injury attorney because:

• It’s a detail-oriented job: When you’re involved in an accident, the sooner you consult a lawyer, the higher your chances of securing a favorable verdict. This is because your attorney will advise you on the wisdom of collecting facts and details to strengthen your case; photos, affidavits from witnesses and other relevant evidence and information that is organized and sorted relevantly help you build your case and ensure that you are able to secure adequate compensation.

• They are veterans in the business: If you had to choose between a greenhorn and a veteran to do a job that’s important, who would you pick? Personal injury lawyers know how to go about your case and are able to handle it with professionalism and ease because they have handled many similar lawsuits. They have the experience and you don’t – it’s as simple as that.

• They don’t get paid unless you win the case: Most personal injury lawyers work on a contingency basis, that is, they take a percentage of the monetary damages awarded to you by a jury. So unless you win the case, there is no need to spend any money except for a few incidental expenses.

• They are neutral advisers: Which means that they are able to look at both sides of the case and work on presenting yours without the emotional bias and prejudice that you are laboring under. You and your loved ones are bound to be emotional and this may end up ruining your chance of victory because you may get careless and slip up on a technicality. But a personal injury lawyer will handle the case with your best interests at heart, without letting emotion get in the way of doing his/her job.

• They know the system: Personal injury lawyers have been in the system long enough to know how judges, juries and the legal system work. They know if you have a case or if you’re just wasting time. They are able to advise you on what you should and should not do. And they prevent you from jeopardizing your case by talking about it or losing important evidence.

So if you think you have a personal injury case, go ahead and hire a personal injury lawyer who you’re comfortable working with. It will be worth your while if you’re able to find the right person for the job.