Missouri Injury Law Blog

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 ........

2012 Legislative Agenda for Missouri Workers Compensation

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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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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Ever since the 2005 Tort "reform" law changes in Missouri there has been an ongoing debate as to what the amount of medical damages submitted to a jury is. Auto insurance companies and their lawyers argue for the amount paid by the individual or their health insurance and not the full amount of the bill. As most people know, the amount of a medical bill and the amount actually paid often differ. See Injury Law Article: Medical Bills at Trial. This previous injury law article discusses the background of the "paid" versus "billed" debate.

Recently, Missouri Federal Judge Mummert issued an order pertnaing to this issue in an Under-Insured Motorist "UIM" case which would logically also apply to a Missouri Uninsured Motorist "UM" case as well. Judge Mummert ruled that Mo.Rev.Stat. § 490.715.5(2) is inapplicable in a under-insured motorist case, and thus also a uninsured motorist case, because the negligent person responsible for the injuries, the Under-insured motorist, is not a party to the case, thus the statue is not applicable. Section 490.715.5(1) reads that "[p]arties may introduce evidence of the value of the medical treatment rendered to a party that was reasonable, necessary, and a proximate result of the negligence of any party." Because the medical treatment rendered to Plaintiff was the proximate result of a non-party, a plain reading of the statute forecloses application by the insurance company; which is the named defendant (party) to a UIM or UM case. See Mummert.Order.790.715.pdf

This is an important ruling for all "UM" and "UIM" cases going forward as it helps put the argument to rest of what amount to consider going to the jury in an auto crash or other personal injury trial. The difference between the amount Paid versus Billed is oftentimes very significant and makes a major difference in settlement negotiations as well as at trial. The "Paid" versus "Billed" battle is still ongoing and is not settled law in Missouri. However, Orders like this one, even though it is pertinent to UM or UIM cases only, helps settle the issue at least for certain types of cases.

Related Articles:

Medical Bills at Trial: "Billed" versus "Paid" Amount, what if Bills Partially Paid? So "Billed" versus "Partially Paid"?

Missouri Personal Injury Trial Evidence: Increased Risk of Future Surgery Admissible When.....

Auto accident lawyer Ben Sansone focuses his practice on personal injury, auto accidents, premise liability, and medical malpractice. For a free & no obligation consultation with a personal injury attorney, contact a lawyer today or call (314) 863-0500.

In a previous Missouri injury law blog post I discussed that a witness' opinion that another witness or one of the parties to the lawsuit is telling the truth or lying is inadmissible in most situations. See: Witnesses Generally Cannot Testify that they Believe another Witness is Telling the Truth here.

When preparing a personal injury case for trial the insurance defense lawyers may try to establish a theme or red herring to witnesses suggesting that the injured Plaintiff is not really hurt but motivated by money, in other words, asking for an opinion that the injured client is not telling the truth to help their lawsuit. This situation also falls under the above premise that witnesses cannot comment on truth or veracity of other witnesses.

A Defense Doctor (or other witness) Cannot Imply a Plaintiff's Complaints of Injury is Greater because a Lawsuit is Pending

In Yingling v. Hartwig, 925 S.W.2d. 952 (Mo. App. 1996), comments by a defense doctor that "Patients who are involved in litigation tend to have their subjective complaints last considerably longer" than patients who are not in litigation. The court held that comment was improper as it was a comment or opinion as to the truth or veracity of the Plaintiff, that is an issue for the jury to decide, not fact witnesses. The testimony was a comment on a plaintiff's credibility; a statement that plaintiff's generally falsify their subjective complaints for the purpose of furthering their lawsuit and increasing their damages. Such a comment by an expert witness is inadmissible. State v. Taylor, 663 S.W.2d. 235, 239 (Mo.banc 1984) ("Expert opinion testimony is not admissible as it relates to credibility of witnesses."

Attacking Plaintiff for their use of the Legal System

Comments that the Plaintiff has used the legal system in an attempt to discredit them must be prevented. Questions about when the Plaintiff first consulted their Missouri personal injury lawyer is not allowed, because the questions were asked "to discredit plaintiffs as avaricious because they sought the services of a lawyer soon after their son's death." Carlyle v. Lai, 783 S.W.2d 925, 929 (Mo.App. W.D. 1989)("Accessing the legal system is normally not to be discouraged and, exercising one's right to utilize the legal system within established rules and procedures should normally not be used to attempt to discredit a litigant with a jury.") Also, comments on when the Plaintiff filed the lawsuit are improper, Edgell v. Leighty, 825 S.W.2d 325 (Mo.App. S.D. 1992)(Court properly excluded evidence concerning date injured motorist filed suit).

Conclusion on how to handle Criticism of the Plaintiff regarding their Truthfulness or Motivations:

Opposing counsel and their witnesses must be prevented from injecting improper issues of motivation of the Plaintiff for bringing a lawsuit. Defense counsel and their witnesses should not be allowed to argue to the jury that Plaintiffs are faking or exaggerating their injuries for purposes of litigation when there is no evidence that this is the case, apart from the speculative and inadmissible opinions of Defendant's hired expert.

Throughout litigation, discovery, depositions, motions, etc ... opposing lawyers will often make these types of accusations so you know they are coming. However, do not wait for it to be brought up at trial, experienced injury lawyers know to address this in pretrial motions with the judge asking for advanced rulings on these issues.

Accusations of lying for monetary gain is the red meat for the defense oriented jurors. If those arguments get in front of a jury through express opinions of witnesses or implied by defense lawyers in their comments that is ammo for defense oriented jurors to improperly convince or sway the other jurors that are following the law. These arguments are used all the time by local St Louis insurance defense attorneys, a good injury trial lawyer is on their toes and ready for these types of arguments and ready to counter them or prevent them before they get in front of a jury.

Ben Sansone is a Clayton based Injury Attorney for over ten years and has handled hundreds of personal injury cases to successful conclusions. If you need to speak with a lawyer call us today at (314) 863-0500 for a FREE and NO OBLIGATION Consultation.

Last week a jury returned a verdict holding the driver not liable for injuries caused to a child on a bike. All I know is what I have read about this case in the legal papers, but I am not surprised that despite the evidence that the driver was at fault, the jury sided with the driver. As a lawyer and advocate for bicyclists' rights, I have written many articles about the issues and challenges that are faced when representing bikers. See - St Louis Bike Lawyer Blog.

The defenses that must be handled at trial by addressing these issues through the case, are the - I did not see the cyclist defense, cyclist right of way at intersections, assumption of the risk, and claims the cyclist was violating the law. See Cyclists' right and duties.

The I did not see the cyclist is an all too common defense theme. It is an attempt to shift blame onto the cyclist for using the road, when under Missouri law a biker has the same rights and duties as a driver of a motor vehicle. Early investigation and preservation of evidence is critical. Take pictures of the scene as soon as possible, keep the clothing you were wearing, any protective gear, and the bike itself. Particularly get pictures of any reflective gear you were wearing, safety gear, and any lights or flashing LEDs you may have had on the bike. Insurance defense lawyers imply it and jurors sometimes buy the argument that the cyclist should not have been on the road and the driver is the victim for having to go through litigation after hitting you. FACT, in Missouri not seeing a cyclist is not a legitimate legal defense and this must be addressed with the jury head on as soon as possible. Unless the cyclist was riding in the dark with no lights and dark clothing, I did not see the cyclist is not a defense!

Bikers' have all the same rights and duties as drivers of cars. They have the right to be on the road, to use the road, and not to be overtaken and cut off. Being overtaken and cut off is what I call the right hook and is a common cause of bike injuries. See Cyclist Injuries from the "Right Hook" and explaining the law in Missouri about maintaining a safe distance when overtaking a bicycle.

First and foremost in handling any bike injury case, you must show more than mere inattention by the driver, as all jurors are drivers, and only a few are cyclists, therefore, most jurors side with the driver over the cyclist. Unfortunately, many jurors' perception of cyclists is that big group of cyclists that were blocking the roadway and slowing down traffic as the cars passed them one at a time. This must be dealt with early on with potential jurors who may see cyclists as a roadway nuisance instead of a citizen with the same rights as everyone else on the road.

It has been a mild winter here in St Louis and spring is upon us, which means beautiful bike riding weather. Remember to be careful on the roads and always assume a driver does not see you. Please read St Louis Cyclist Attorney blog on how to avoid common causes of bike accidents.

If you find yourself in the unfortunate position of being a victim of a bike accident, call us as soon as possible for a free consultation. Do not talk to the insurance companies, they are trained to get you to say what you should not say and to investigate the case in the light most favorable to their insured, the at fault driver. They will not pay you anything close to what your case is worth, they claim they will, do not listen. You need a powerful advocate on your side, get Bike Accident Lawyer Ben Sansone on your side.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Role of Property Damage Pictures in Missouri Car Accident Injury Trials

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See related blog:

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

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

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

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

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

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

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

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

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

If a doctor does something that is not in accordance with the requisite standard of care then that doctor has engaged in medical malpractice. If you or some you know has become sick or injured because of a doctor falling below the required standard of care, you need the help of a St. Louis injury attorney experienced in medical malpractice to help protect your rights and recover damages for your injury. Contact med mal attorney Ben Sansone today for a free initial consultation at (314) 863-0500.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See Also:

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

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