Missouri Injury Law Blog

The U.S. Food and Drug Administration recently released an alert to nursing home providers across the country about the potential dangers posed by contaminated mattresses. Specifically, the alert referred to the risk of dangerous infections that can start when worn or damaged mattress covers allow blood and other bodily fluids to penetrate medical beds in nursing home facilities.

The FDA safety bulletin said that medical mattress covers are designed to protect the mattress itself from contaminated fluids. The problem is that due to overuse and simple old age, many of these covers can become worn. The wear and tear on mattress covers can cause leakage in places, allowing bodily fluids to penetrate to the inner layers of the mattress. This is possible even in covers that claim to be water-proof or which are coated in antibacterial substances designed to kill viruses and bacteria.

The FDA says that it believes damaged mattress covers are responsible for several potential infection outbreaks that have occurred across the country in nursing homes. Specifically, the FDA says that over the last two years it has received just under 500 reports associated with mattress covers that have failed to prevent bodily fluids from leaking into the mattress itself. Many of these reports have indicated that fluids from one patient penetrate a mattress and then later either leak out or come in contact with a new patient that has been placed on the same bed. This second patient is then at a high risk of developing infections which can spread throughout the rest of the facility.

The regulatory agency has said that problem is no small matter; instead, it believes that the issue of contaminated mattresses is widespread and seldom spotted by healthcare providers who are not trained to look out for such problems. To help combat the issue, the FDA has recommended that staff members at nursing facilities regularly check each mattress cover for visible signs of damage such as cracks, tears or pinholes which can allow fluids to leak inside the cover. Another vulnerable area in the covers is the zipper, which the FDA says can be the source of leaks. Staff members should also regularly remove the mattress cover and check inside for moisture. The mattresses should be checked for wet spots or stains, which can indicate that the cover is not functioning as it should. All damaged or soiled mattresses should be replaced immediately given the danger of an infection associated with such contaminated mattresses.

Illinois medical malpractice lawyer Ben Sansone is an experienced trial lawyer who routinely handles cases from simple car crashes to complex medical negligence cases. If you would like to discuss a potential case we are available for a free consultation to discuss your case. Call us at (314) 863-0500 or contact us online to arrange a free meeting.

Source: "FDA Warns That Damaged, Worn Covers for Medical Bed Mattresses Pose Risk," published at InfectionControlToday.com.

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An attempt by the Missouri legislature to reinstate the state's cap on noneconomic damages in medical malpractice lawsuits took a hit earlier this week in the state Senate. Despite fevered attempts, with some legislators working well into the night, the measure never made it to a full vote on the Senate floor.

The sponsor of the new legislation, Senator Dan Brown, told reporters that he would continue working on getting the measure before a full vote of the Senate body before the end of this year's legislative session. Senator Brown is under the gun given that the legislature only has until May 17th to pass new measures before a mandatory adjournment.

Senator Brown said the negotiations broke down over the precise dollar amount that would be involved. The measure was meant to reimpose a limit on noneconomic damages in med mal cases, which means limiting the amount of money injured patients can collect for pain and suffering. The previous med mal cap was struck down by the Missouri Supreme Court last year, much to the chagrin of Republican legislators who believe the cap is crucial to curb what they view as "frivolous lawsuits" (a ridiculous allegation). The state Supreme Court decided that the law, capping damages at $350,000, violated the state's constitutional right to a jury trial given that the caps act as a restriction on a jury's fact-finding role.

The newly proposed measure, HB 112, seeks to do an end run around the Supreme Court by eliminating a common-law right to file lawsuits over health care services. The new right would be statutory instead, and would include a damage cap of $350,000. The measure was approved earlier last month in a 93-62 vote in the House.

Supporters of the measure, including Senator Brown, argue that the legislation is necessary to help reign in malpractice insurance premiums and to ensure that doctors continue to want to practice in the state. Opponents argue that a cap is not only unconstitutional, but is designed to protect wrongdoers at the expense of those who have suffered horrific and possibly irreparable harm. In some cases, larger damage awards are necessary, painful measures that are meant to send a strong message to the perpetrators and others who might be inclined to cut similar corners in the future. By implementing a damage cap doctors and healthcare providers know that there is a ceiling to how much money they can be forced to pay out for pain and suffering.

Medical negligence lawyer Ben Sansone is located in St Louis (Clayton) Missouri and handles medical negligence cases across all of Missouri and Illinois. For a free consultation please call (314) 863-0500 or contact us online.

Source: "Medical Malpractice Cap Bill Stuck In Missouri Senate," by Marshall Griffin, published at KCUR.org.

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Earlier this month a driver from Clay County, Missouri, plead guilty to careless and imprudent driving after a sneezing attack led to her hitting and killing another motorist. Police say the woman hit the other driver head-on after drifting out of her lane. There is a defense to negligence based on a sudden and unexpected medical condition, such as a seizure or a heart attack that causes you to loose control. But a sneeze? Probably not a good defense to a Missouri wrongful death action; especially if the driver pleads guilty to criminal charges which is an admission of the negligent act.

The accident in question occurred back in November (which we previously discussed here) of last year when Brady hit Laura McClendon, killing her and paralyzing her two-year-old son. The accident took place just outside of Smithville, MO and occurred when Brady began having a sneezing attack. The sneezing caused her to lose control of her vehicle, crossing the centerline of the narrow road. She eventually drifted far enough over the line and that she struck McClendon's vehicle head-on.

Brady now faces up to 18 months in jail and a fine of $1,500. Brady has not yet been sentenced, authorities say that will happen later in June. It's a terrible price to pay for the victims and the driver, all because of a careless sneezing fit.

Police took the deadly accident as an opportunity to remind drivers about the importance of maintaining control over your vehicle, emphasizing how even momentary lapses, like this one, could lead to disaster. Officers said that if a driver starts sneezing it is critical that they continue to control the car. Attorneys say that Brady could have easily slowed her car down or pulled over until her sneezing episode subsided.

The family of McClendon has now filed a wrongful death suit against Brady. It's important to understand that in Missouri, individuals can file suit against negligent parties who have caused them harm regardless of whether criminal charges are being pursued. Despite Brady's prosecution and even potential jail time, the McClendon's family is still permitted to file suit for civil compensation. In fact, her plead of guilty to the careless and imprudent driving can and will be used in the civil auto crash case to prove it was her fault.

Another unfortunate bit of news came from the police who said that Brady had no insurance at the time of the deadly accident. In Missouri, and most other states, the law requires the owner of a motor vehicle to have it insured before operating it on state roadways. Sadly, many people decide to disobey this requirement and drive without proper insurance.

If you are ever involved in an accident and the other driver has no insurance, then you will be forced to make what is known as an uninsured motorist claim against your car insurance policy. Everyone in Missouri is required to carry a minimum of $25,000 in uninsured motorist coverage in case such an accident does occur. Once you file a UM claim, your insurance company steps in to take the place of the negligent driver and can be held liable for your medical bills, lost wages, and pain and suffering.

Though this is welcome news for the family of the woman killed in the accident, $25,000 does not go very far. There are countless situations where clients wished they carried more than $25,000 in uninsured motorist coverage. Given the potential harm that can result in such uninsured driver accidents, it's a good idea to carry the maximum uninsured motorist coverage allowed under your policy.

If you or someone you know has a loved one who has been seriously or fatally injured in any kind of accident due to the negligence of another party, you do have options to receive compensation for this loss. For information on how to protect your rights in a situation of negligence or wrongful death, please call one of the St. Louis Missouri car accident attorneys at (314) 863-0500 today or contact us online.

Source: "Driver Guilty of Careless Driving After Sneezing While Driving Fatality," by Kathryn Brady, published at Yahoo.com.

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Missouri Fatal Car Accident: Caused by Sneezing?

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One of the most devastating types of medical malpractice, and unfortunately a common mistake, is doctors operating on the wrong part of the body or the wrong side. A former state medical commissioner and President of the Joint Commission (the largest healthcare accrediting agency) stated that the wrong site surgery problem is very difficult to deal with and all too common.

"[S]uch errors are growing in part because of increased time pressures. Preventing wrong-site surgery also "turns out to be more complicated to eradicate than anybody thought," he said, because it involves changing the culture of hospitals and getting doctors -- who typically prize their autonomy, resist checklists and underestimate their propensity for error -- to follow standardized procedures and work in teams."

Studies of wrong site surgery errors have revealed, over and over, that on of the largest factors contributing to this preventable error is that surgeon's chose not to do a timeout. They chose not to take this patient safety precaution which exposes the patient to needless harm. A "Time out" is a "procedure just before the surgery begins, there is a "time out" and it is verified to everyone on the surgical team that they have the proper patient and everyone knows the proper surgical procedure and surgical site." See Wrong Site Surgery Malpractice

Medical professionals admit that the reported cases of wrong site surgery is just scratching the surface of the problem. Reported cases are "clearly the tip of the iceberg" said Philip F. Stahel, director of orthopedic surgery. Stahl conducted a study in 2010 of 132 wrong site surgery and wrong patient surgery cases, in 72% of the cases, there was no "time out". The study also indicated that most doctors resist the rules such as time out or sign your site, they don't think they could make such a mistake.

Contrary to the propaganda by anti-civil justice movement (tort "reform" advocates), it is a fact that the majority of patients (67%) victimized by wrong site surgery never seek legal recourse. Furthermore, the average payment for wrong site or wrong person surgery was only about $65,000, and that was only for the 33% of injured patients that pursued legal action. This is a fact reported by the medical associations, but you will never hear about that when the politicians start asking for you to support medical malpractice caps and other reforms.

"The legal system typically offers little recourse: One study found that only a third of wrong-site cases result in a malpractice suit. Stahel's team found that the average payment was less than $81,000 in cases resulting in a lawsuit and $47,000 in those resolved without legal action."

The statistics abortive do not reflect our law firm's success rate, and is a reminder about why is is so important to hire an experienced lawyer specializing in medical negligence. Our average healthcare malpractice settlement is $1.7 Million.

Most patients do not know that medical mistakes, even these simple ones are all too common. They don't know until it happens to them or a loved one. Consider these statements from doctors that are heads of hospitals across the country:

"Health care has far too little accountability for results. ... All the pressures are on the side of production; that's how you get paid," said Hopkins's Pronovost, who adds that increased pressure to turn over operating rooms quickly has trumped patient safety, increasing the chance of error.

In surgery "sometimes people say, 'Well, this isn't quite right, but someone else will address it.' In aviation they don't do that, because the plane will crash and they will all die," he said.

Reducing the number of errors will require tougher reporting rules and increased transparency. Kizer, California's former chief health officer, advocates mandatory reporting of wrong-site errors to a federal agency so cases can be investigated and the results publicly reported.

If you or a family member has been the victim of wrong site or side surgery don't walk away without making a claim, you are entitled to fair payment for your injury. Call Missouri & Illinois medical malpractice lawyer Ben Sansone for a free meeting to discuss your case. (314) 863-0500.

Generally, under Missouri law, witnesses cannot testify about the credibility or truthfulness of another witness or party to the case. That is the job of the jury, to weigh credibility and decide who is telling the truth. So obviously, one witness cannot say another is dishonest or opine that the victim is exaggerating her pain because of a lawsuit. This is referred to as malingering. Whether it is from a lay witness or an expert medical witnesses, it is plain error to admit testimony that is a thinly veiled comment on a witness' credibility.

However, what about defense hired doctors who try and claim that patients who are involved in litigation tend to have complaints of pain longer than those that do not have ongoing litigation? We had on such situation when a brain injury case involving post-concussion syndrome went to trial recently in St Louis County court. The neuropsychologist that examined the Plaintiff testified in his deposition (testimony before trial) that patients with post concussion syndrome, who complain of symptoms more than 1 year from the date of injury, may be complaining of symptoms because of ongoing litigation. This testimony is absolutely inadmissible as the doctor is very obviously implying that the Plaintiff is making up their complaints because of an ongoing lawsuit. This is what defense doctor's are hired to do, call the Plaintiff a liar or malingerer and try to imply to the jury they are only saying they are hurt for money. This is a witness testifying about the credibility of another witness, again, the job of the jury to weigh credibility, not witnesses.

In Allen v. Andrews, 599 S.W.2d 262 (Mo.App.S.D. 1980), the plaintiff hurt their neck in a Springfield Missouri car accident. The case went to trial, however, after the verdict the Judge ordered a new trial because of testimony from a defense doctor that should not have been allowed. In particular, a treating physician called to testify by the defendant testified:

"I would just like to make a broad statement insofar as my dealings with patients with injuries which involve litigation.... I repeat that without exception patients with litigation in injured necks apparently recover because they never come back to see me once the litigation has been settled, so I would say (the plaintiff's) neck would recover without any residual disability."

This case supports the proposition that testimony offering generalized opinions as to the credibility of plaintiffs is unfairly prejudicial.

In Yingling v. Hartwig, 925 S.W.2d. 952, 956 (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 were allowed by the trial judge. However, the court of appeals found that the allowance of this testimony to be an abuse of discretion. That comment was improper as it was a comment or opinion as to the truth or veracity of the Plaintiff, and that is an issue for the jury to decide.

The court began its analysis by noting that the challenged witness' testimony in the case before it was similar to the witness testimony considered in the Allen case discussed above. In particular, the court observed:

"[A]s in Allen, the trial court in the case at bar abused its discretion in allowing testimony because it was highly prejudicial to the Yinglings' case. [The] testimony constituted broad-sweeping statements reflecting on "people not in litigation" and "people who are in litigation" - generalities, without any indication of similarity with or application to Christina Yingling. A court of law is not a public forum, and witnesses are not permitted to make general declarations about matters wholly unrelated to the parties. * * * Statements about unidentified people with unidentified injuries and complaints are irrelevant to prove whether Christina Yingling continues to suffer from her injuries, one of the issues at trial, and the trial court abused its discretion in admitting the testimony."

In other words, the court found that generalized opinions, as to the credibility and/or truthfulness of litigants in general, is irrelevant to the credibility or truthfulness of the plaintiff in a particular case, and that such opinions are unfairly prejudicial. Importantly, however, the court did not end its analysis there. Rather, the court went on to consider whether the opinion testimony in question - if assumed to be relevant and probative as to the particular plaintiff - was still too unfairly prejudicial to be admitted. The court answered this question in the affirmative. Specifically, the court said:

"Even if we assumed, arguendo, the testimony was somehow logically relevant, any probative value is far outweighed by its prejudicial effect to the Yinglings. * * * [The witness'] testimony was, in essence, a comment on a plaintiff's credibility; a statement that plaintiffs 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. Tayler, 663 S.W.2d 235, 239 (Mo. banc. 1984) ("[E]xpert opinion testimony is not admissible as it relates to credibility of witnesses")."

"[E]ven if we could say the testimony had some logical relevance and some probative value, which we cannot, it would still be inadmissible because its prejudicial effect is wholly disproportionate to any value it might have."

Even if generalized opinion testimony regarding the tendency of litigants in general to manufacture or exaggerate their symptoms were somehow relevant and probative on the issue of whether a particular plaintiff was manufacturing or exaggerating her symptoms, such opinion testimony would nevertheless constitute an improper and inadmissible comment on a plaintiff's credibility, and would be unfairly prejudicial. On this basis, the court reversed and remanded for a new trial.

Expert testimony that comments directly on a particular witness' credibility, as well as expert testimony that expresses an opinion with respect to the credibility or truthfulness of witness of the same type under consideration invests "scientific cachet" on the central issue of credibility and should not be admitted.

Continue reading "In Missouri, Witnesses cannot Claim Victim's Symptoms are Effected by Litigation - The Malingering Defense" »

Witnesses may be impeached (question their credibility and veracity) based on previous convictions. This oftentimes comes into play in Missouri car accident lawsuits. In some cases the at-fault driver has a history of DWI or other convictions, but no convictions from the car accident at issue. Generally, the plaintiff then cannot just tell the jury about these convictions, because they are not relevant to the car accident at hand; however, if the Defendant testifies, previous convictions can be used to attack his credibility and therefore get the convictions into evidence.

Under Missouri statutes, the prior convictions of a witness are admissible by statute, see Missouri Statute § 491.050, "Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal convictions may be proved to affect his credibility in a civil or criminal case[.]"

Accordingly, on cross-examination a party may "elicit the nature, dates, places of the occurrences and sentences." State v. Holden, 278 S.W.3d 674, 681 (Mo. 2009). The court has often noted that in "literary terms the who, what, when and where. . ." Are proper as to a conviction. Id. (citing State v. Light, 871 S.W.2d 59, 62-63 (Mo. App. 1994). "Unlike Federal Rule of Evidence 609, the Missouri statute . . . does not place any time limit on the offenses. See State v. Cantrell, 775 S.W.2d 319, 321 (Mo. App. E.D. 1989)(Finding statute allows allowing examination of convictions received over 30 years before trial). Further, the statute is not a discretionary statute but one of right.

Under clear Missouri law, plaintiff has the absolute right to obtain the nature, dates and places of the occurrence and the sentences resulting from a negligent driver's convictions.

We currently have several cases where this is an important issue in the case. For example an unlicensed driver that causes and accident may have several prior convictions for driving while suspended or DWI or other charges, this allows Plaintiff to get these previous convictions in front of a jury so they know the defendant driver continues to choose to needlessly endanger people on the roadway; empowering the jury to act in their intended role, as guardians of the community, by enforcing civil negligence rules.

Sansone / Lauber is a St Louis based trial law firm handling personal injury cases. For a free consultation call (314) 863-0500 or contact us online.

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If some one causes a car accident that results in an injury, to what extent are they responsible for the injury? What if the injured person sustains further injury through subsequent malpractice by the emergency room doctors? what if they get an infection int he hospital which leads to a much more serious condition than the injury caused in the car accident? Also, what if the person involved in a car accident already had a medical condition which made their injury worse, such a as bad back or recent surgery that had not healed?

Subsequent Injury:

Under Missouri personal injury law, the person that caused the initial injury, also referred to as the original tortfeasor, is legally liable for subsequent injury through negligent medical care. So for example, the original tortfeasor caused a car crash in Missouri, the victim suffered a broken leg and was taken to the hospital where they catch a staph infection or other nasty bug, the original tortfeasor (the negligent driver) is responsible not only for the broken leg but the subsequent infection, regardless if it was caused by medical negligence or not. The only defense to the subsequent infection would be a "failure to mitigate damage defense" basically an accusation that the victim somehow caused the subsequent injury (the infection in this example) themselves or failed to prevent it when they easily could have. So in the infection example, if there is evidence that the victim failed to properly care for their would after being sent home, that could be a defense. But generally subsequent negligence is not a defense and the driver is responsible for injuries, such as infections, that can occur after the car accident.

See Baldwin v. Gaertner, 613 S.W.2d 638, 640 (Mo Banc 1981), stating:

An original tortfeasor may be liable for any additional damages resulting from the negligent treatment of an injury by a physician, but the physician, who has played no part in causing the original injury, will be liable only for the additional harm caused by his or her own negligence in treatment

A case dealing with this issue we currently are handling:

We represent a bike rider that was hit by an O'Reilly AutoParts truck while he was riding on the sidewalk. The bike rider was rehabilitating his knee by bike riding as he had a knee replacement just a few weeks earlier. So when he was hit by the truck his knee was injured much more than if he had a healthy knee. Additionally, while in the hospital repairing his knee injury, he caught a staph infection in his knee which resulted in several weeks spent in the hospital. The truck driver that caused the St Louis bike accident is also responsible for the additional medical treatment from the infection.

Pre-Existing Conditions:

Additionally, many people ask me about a negligent driver's responsibility for a pre-existing condition. Some people feel that if a victim of a car crash already had a pre-existing condition (example, disc herniation and previous back surgery) and the accident makes that condition worse, that the driver should not be responsible because if the victim did not have that pre-existing injury then the accident would not have hurt them as bad. Some people feel that you are responsible for the injury regardless if the victim was more susceptible to injury through a pre-existing condition or not. Under Missouri law they are responsible for the victim regardless if they have a condition that makes them more susceptible to injury than the average person.

Missouri follows the "Eggshell Skull Doctrine" , meaning you take your victim as you find them. The fact they have some condition or pre-existing injury that makes them more susceptible to injury is not a defense. So in the Missouri bike injury case above, the truck driver cannot defend the case by claiming a biker without a recent knee surgery would not have been hurt as badly, additionally, the truck driver cannot claim they are not responsible for the subsequent infection, as it is foreseeable that a hospital admission for a bike injury could result in an infection, even if it is because of medical negligence.

Ben Sansone is an experienced Missouri trial lawyer based in St Louis and handles injury law and accident cases throughout Missouri and Illinois. Call for a FREE CONSULTATION (314) 863-0500 or e-mail us.

Drunk driving accidents are one of the leading causes of needless injury and death in Missouri, Illinois, and across the country. Our St Louis law firm unfortunately sees the carnage caused by this reckless behavior through the injury and wrongful death cases that we handle that often involve drunk drivers.

Sometimes, the drunk drivers got extremely drunk at a bar or restaurant, left that bar and then caused the car crash. So what responsibility should the bar have, assuming you can prove they were over-served? In Missouri and Illinois if the driver was "visibly intoxicated" and the bar continued to serve them, they could be liable for the injuries caused to others on the road. See Missouri Dram Shop Law, proof drunk driver was "Visibly Intoxicated".

Some states still don't have those laws on the books; therefore, the bar can over-serve a driver and throw their hands up to the family of someone killed by a drunk driver and say, "we can't control what they do". Nonsense! They can prevent needless deaths by simply refusing to serve patrons that are visibly intoxicated, or even call a cab for them or encourage them not to drive or turn their keys over if they want another drink.

The fight to impose liability on bar owners is currently going on in Maryland, a state that currently does not have laws on the books holding bar owners responsible. See, Maryland court considers liability of bars in drunken-driving crashes.

I read this article and felt it is necessary to dispose of some myths from the insurance industry that is fighting this law. Int he article the bar owners are claiming: "They say they can't control the actions of someone who leaves their premises. In addition, they say the prospect of being blamed for a customer's drunken-driving crash would raise insurance premiums for them, raise prices for customers and lead some businesses to shut their doors."

True, they cannot control the actions of someone who leaves their premises, but they can control if they are over-served at their bar. No one is trying to hold business owners responsible for a drunk driver that chooses to get ridiculously drunk in the parking lot or somewhere else.

More importantly, the family of the victim or the injured person must prove that the driver was visibly intoxicated and was still served at the bar. This is not easy, but the insurance industry makes it sound like liability is automatic against the bar just of a drunk driving crash happens. Most cases it is difficult to prove the driver was "visibly intoxicated": and then served continuously, it is a very tough burden to prove.

Why is it so hard to prove? Usually no-one knows where the drunk driver came from, then when you find out, and surveillance tape is gone, if it ever existed. Then you have to find witnesses at the bar who can say they remember the driver before they left and that they were visibly intoxicated. Additionally, usually the witnesses were drunk themselves and thus their recall is sketchy at best.

So in the few cases where there are witnesses and clear evidence the bar employees knowingly over-served a drunk person, then let them walk out and drive, and that person causes a car crash; why not hold them responsible? The vast majority of drunk driving injuries, no-one knows where the intoxicated driver got drunk at and it is never an issue because of that.

So to the business owners out there they want to shirk responsibly for knowingly let an inebriated driver leave and drive off and likely kill someone, I say hire a good lawyer because we are coming for you! You would not put a gun in the hand of a drunken patron at 2:00 in morning, so why load that gun for them by over-serving them and get paid for doing it.

It is not difficult, don't serve people that are visibly drunk, if you do, ask a simple question: Do you have your car keys? .... yes .... well, if you want another drink here give them to me and I will give them back to you in the morning or hand them to the cab driver when he picks you up.... Don't want to hand over your keys? I cannot serve you another drink, thank you for coming in. -- Will probably save a life.

St Louis Attorney Ben Sansone is an experienced drunk driving accident lawyer, with millions in verdicts and settlements against drunk drivers and on behalf of injured victims and their families. Hurt by a drunk driver? Relative killed by a drunk driver? Call us today (314) 863-0500 for a free consultation.

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Some good news for injured employees across the state of Missouri happened last week when the Senate passed a bill that would serve to bolster the state's second injury workers' compensation fund by increasing the amount employers must pay into the fund. The fund will now be replenished by having employers temporarily double the fee they must contribute.

The measure passed overwhelmingly, 32-2, and will now move on to the House. Though supporting the fund is great news, as a whole the law was a bit of a mixed bag for workers as it also included a damage cap. Sadly, should this measure go on to pass the House it will mean that some of the most seriously injured workers will not be able to bring high dollar cases against their employers. The measure also hopes to control expenses of the fund by limiting future coverage only to those workers who are permanently and totally disabled. Employees who suffered only partial disabilities would have to be covered only through traditional workers' compensation insurance policies purchased by employers.

The legislation also contains language which will clarify which occupational diseases will now be dealt with through the workers' compensation system. It would also create a benefit for those workers suffering from certain diseases caused by work-related exposures to toxins. The bill would require the Missouri Second Injury Fund to pay more than $150,000 to those workers who suffered from certain diseases while those workers dealing with the horrors of mesothelioma after a career of working with asbestos would get an enhanced benefit totaling nearly $600,000.

The second injury fund exists as a last line of defense for those workers who have been disabled on the job due to serious workplace injuries. A law passed in 2005 by Republican legislators capped the amount of money employers would pay into the fund; something that has meant the fund's resources became stretched, threatening its long-term survival. At the end of 2012, the fund was perilously close to insolvency, with a remaining balance of only $3.2 million and unpaid obligations of more than $28 million.

Currently there are 30,000 cases in a backlog that must be dealt with. Each case represents an injured worker and his or her family that desperately needs the money to survive. Thousands of workers are struggling as they wait to collect the settlements they counted on to help pay bills following serious workplace injuries. Though the new legislation contains several troubling measures, if it works to stabilize the fund and pay out settlements to the thousands of workers in desperate need of them, then it's a small step in the right direction.

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. Senate passes bill to reform Second Injury Fund," by Greta Weiderman, published at BizJournals.com/StLouis.

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

The 7th Amendment to the United States Constitution guarantees an individual's right to a trial by a jury of his or her peers, meaning the people in their community. This right is very clear, yet the politicians in Missouri who always pound their chests about not infringing and the 2nd Amendment (which I absolutely agree with); have no problem trashing the 7th amendment to try to protect negligent doctors and hospitals (really insurance companies) at the expense of innocent victims and the taxpayers. That's right, the tax-payers, because when a victim is severely injured, denied compensation because of malpractice caps and tort "reform" laws, the malpractice insurance company makes more money and the victim is often forced to turn to Medicaid, Medicare or other governmental assistance. For a very clear article about this see St Louis Post Dispatch Article:
"Right to trial protects patients from negligent doctors".

Insurance companies in Missouri have gone on the offensive and are now lobbying Missouri legislators to put liability limits for medical malpractice cases in place after the Missouri Supreme Court struck down the previous cap last year. In the coming months and years you will hear, once again, all the debunked myths about doctors fleeing the state, being forced out of practice, etc... See: Tort Reform Myths

A law passed by state legislators in 2005 capped noneconomic damages in medical malpractice lawsuits at $350,000. The measure was meant to put limits on growth in medical liability lawsuits. Prior to that, the limits were $579,000 (adjusted for inflation) for non-economic damages against each defendant for each negligent act. The state Supreme Court heard a case last year on the 2005 limits and determined that the cap was unconstitutional.

The Supreme Court voted 4-3 to overturn the cap, citing Missouri's Bill of Rights which says that the then existing right to trial by jury shall remain inviolate. Given that at the time the Bill of Rights was enacted in 1820, citizens of Missouri had a right to seek damages for medical malpractice claims, the Supreme Court decided that limits on the amount of damages that would restrict a jury's fact-finding role would violate the constitutional guarantee.

Doctors have aligned with insurance companies to pressure legislators to reinstate the damages cap. They claim that the limit helped the medical community in the state by removing some of the risks associated with hugely inflated med mal verdicts. The cap helped lower medical malpractice insurance premiums and doctors claim that kept more doctors in business in the state, lower costs to consumers in the process.

The proposal before legislators would act as an end-run around the Supreme Court's decision. Lawmakers would eliminate the common-law right to sue over medical malpractice and instead create a statutory right to bring such lawsuits. By abolishing the common-law right to bring such lawsuits, the previous $350,000 cap could be put in place.

Those opposed to such a cap on damages argue vehemently that negligent doctors should not be protected from their own misconduct. Damage caps do nothing to prevent filing frivolous damage claims and only come into play once a jury has decided that a defendant was negligent and that the injured plaintiff suffered real harm. The caps only serve to protect negligent defendants from having to be totally accountable for the damage they caused. See: "Preventable Medical Errors - Leading Cause of Death in the United States"

The fact is that medical mistakes lead to the preventable deaths of 100,000 people each and every year across the country. This horrifyingly high figure places it as one of the leading causes of death in the United States. Those that are responsible for causing such extreme harm should be held responsible for the actions, not have an arbitrary cap put in place protecting them in ways their unsuspecting patients never were.

Medical negligence lawyer Ben Sansone is located in St Louis (Clayton) Missouri and handles medical negligence cases across all of Missouri and Illinois. For a free consultation please call (314) 863-0500 or contact us online.

Source: "Mo. House panel considers medical liability limits," by The Associated Press, published at KAIT8.com.

See Our Related Blog Posts:

Missouri Supreme Court - Medical Malpractice Damage Caps Unconstitutional in
Negligence Actions BUT NOT Wrongful Death Actions

One of the first things I do with new accident client is tell them to either take down their Facebook page or stop posting it as people will say or post private things on Facebook that can seriously effect a an injury claim. The same can go for doctors apparently now too!

A St. Louis, Missouri OB-GYN is in hot water after posting extremely sensitive personal information about a patient on Facebook. The doctor, Amy T. Dunbar, posted revealing information about her patient, including that the woman had suffered a stillborn birth.

Dr. Dunbar raised the ire of many women after going on Facebook to complain about a patient she said was routinely late for appointments. Dunbar posted a comment to her nearly 500 friends asking whether, given her patient's constant tardiness, she should respond by showing up late to her delivery.

The full message said: "So I have a patient who has chosen to either no-show or be late (sometimes hours) for all of her prenatal visits, ultrasound and NSTs. She is now 3 hours late for her induction. May I show up late to her delivery?" Later in the conversation thread the doctor revealed information concerning the patient's stillborn baby.

The conversation was revealed after someone posted a screenshot of the exchange on a Facebook page created for pregnant women at St. John's Mercy Medical Center, a site known as "Mercy Moms To Be." The hospital, located here in St. Louis, released a statement saying that Dunbar has not been fired and that leadership within the hospital would be discussing the matter with Dr. Dunbar. Hospital administrators say that they agree Dunbar's comments were inappropriate and will be reviewing the full statement to decide whether she violated the patient's privacy. The hospital says it will not reveal how it intends to punish Dunbar, but says it will use this as a teaching moment to educate staff about the inherent problems associated with social media, especially in the context of especially thorny medical privacy issues.

The problem of doctors violating patients' privacy by using social media is a growing one that the medical professional is starting to become aware of. A survey conducted in 2009 that was published in JAMA revealed that 60% of medical school deans said there had been incidents of med students posting unprofessional online conduct. Specifically, violations of patient confidentially were reported in 13% of such incidents.

Last year the American Medical Association released guidelines that were meant to guide doctors through appropriate use of social media. The guidance said physicians should be very careful when interacting with patients online and that doctors should follow the same strict rules regarding professionalism whether conversations are taking place online or offline. Medical ethicists are saying doctors should view posting on social networking sites in the same way they view conversations taking place hospital elevators. In either place it is strictly forbidden to discuss private cases in public.

Hospitals are taking note of the problem given that studies have shown that violating patients' privacy through social media sites can do more than result in an ethics investigation. Instead, such breaches are increasingly leading to firings and lawsuits by patients who had their privacy violated.

Medical negligence lawyer Ben Sansone is located in St Louis (Clayton) Missouri and handles medical negligence cases across all of Missouri and Illinois. For a free consultation please call (314) 863-0500 or contact us online.

Source: "Fury sparked as ob-gyn posts personal patient info on Facebook," by Lee Moran, published at NYDailyNews.com.

See Our Related Blog Posts:

Defective Defibrillator Sparks Fear Among Missouri Heart Patients

Fear of Lasting Damage from Concussions Sparks Debate over Youth Sports

There are many reasons why it is important to have a lawyer when dealing with a car accident injury claim or lawsuit. The many reasons are discussed here. Additionally, you need a lawyer to navigate through the many liens or claims that may be asserted by companies against your settlement or judgment money. The following are common claims by 3rd parties wanting money from your settlement:

1. Hospital and Doctor Bills not Submitted through Health Insurance
2. Health Insurance Companies wanting to be paid back
3. Medical Payments Coverage from an Auto Insurance Policy
4. Medicare or Medicaid
5. Workers' Compensation Liens

1. Hospital and Doctor Bills not Submitted through Health Insurance:

If a hospital or doctor refused to submit their bill through your health insurance there is probably a "claimed lien" on your recovery by the hospital or doctor wanting to be paid back in full for their bill. We advise all of our clients to demand the hospital or doctor submit the bills through their health insurance coverage and to go to a different provider if they refuse to do so. Hospitals do this because they want a higher reimbursement rate at the expense of your settlement share. So you must insist that bills are submitted through health insurance and do not agree or sign anything to the contrary. However, if you do not have health insurance you have no choice but to be treated with a lien against your recovery or pay out of pocket costs.

In both Missouri and Illinois there are limits to the amount of the lien the healthcare provider can claim. For a discussion on the Missouri law see, "Can Your Health Insurer Demand Payback for Medical Expenses?"

In Illinois the law is called the "Healthcare Services Lien Act" as essentially states that the total amount of liens from doctors and hospitals cannot eat up more than 40% of your recovery, after attorney fees and costs. EXAMPLE: Case settles for $100,000 but you have medical liens for $50,000. After attorney fees of 1/3 and costs of a few thousand dollars, let's say your recovery is $65,000. the most the healthcare providers can take as part of their lien (assuming they have a valid lien in the first place) is 40% of the $65,000, or $26,000, leaving you with $49,000 in this hypothetical.

The above numbers are assuming a valid lien has been made and the bills are reasonable and necessary. There are many other ways to deal with the liens, however, under Illinois law the above is the maximum amount they can take. Experienced car accident lawyers know how to get the liens often reduced even more through other means. Another example on why having a lawyer maximizes your recovery after a car accident.

2. Health Insurance Companies wanting to be paid back:

Your health insurance paid for all your treatment, so you have to pay them back from your settlement? That depends, do you have coverage through work? if so it is likely an ERISA protected plan. See "Dealing with ERISA Liens When Settling Personal Injury Cases". For ERISA plan treatment in Illinois injury cases see: "Illinois ERISA Plan's Right of Recovery from Your Personal Injury Settlement".

If you have individual coverage, then in Missouri they cannot take any of your settlement money. It would be called "subrogation", and in Missouri that is not enforceable in car accident cases.

In Illinois, however, subrogation by a health insurance company is allowed. Their amount recoverable from your settlement is reduced by the proportionate share of attorney fees. Therefore, if the subrogation claim is for $10,000 and your paid 25% in attorney fees, the subrogation claim is also reduced by 25%, this is referred to as the "Common Fund Doctrine". Additionally, if you are held partially at fault for the accident, lets say 25% at fault, then the subrogation amount is also reduced by that amount as well.

3. Medical Payments Coverage from an Auto Insurance Policy:

Sometimes you may have "Med Pay" coverage under your auto policy which will pay for some of your medical bills, regardless if the accident was your fault or another driver's fault. Just like subrogation with individual health insurance discussed above, in Missouri the med pay insurance company has no right to med pay reimbursement, but in Illinois they do.

4. Medicare or Medicaid:

If you are a Medicare or Medicaid beneficiary and they paid for medical treatment related to a car accident, then the government has a "super-lien" against your recovery. A super-lien is an automatic lien, they do not have to notify you, your attorney, or the insurance company. Therefore, if the insurance company settles and writes you a settlement check without making sure there is not a Medicare or Medicaid lien on the case then they are responsible for the lien amount. Most auto insurance companies will not write any injury settlement check until we get written confirmation from both Medicare and Medicaid that there is not a potential lien on the recovery.

Again, a very critical reason to have a good injury lawyer handle your car accident case. For more details on Medicare and Medicaid liens see: "Medicare recovery against Personal Injury Awards".

5. Workers' Compensation Lien:

If you were hurt in a car accident while on the job then you probably had a work comp claim and a 3rd party claim against the at fault driver. The workers' compensation coverage will pay out faster, cover medical bills, and a percentage of lost wages. These work comp payments are typically made early on and help avoid financial distress.

When the case against the at-fault driver is resolved, you have to pay back the work comp insurer for benefits paid. In the long run the victim still come out ahead and the payment is reduced by what is known as the " The Ruediger Formula" because the lien reduction formula was laid out in the case of Ruediger v. Kallmeyer Brothers Services, 501 SW2d 56 (Mo. 1973).

The Ruediger Formula applied with an example of $300,000 settlements and $90,000 in work comp benefits paid.

So $90,000 / $300,000 equals a ratio of 0.3 meaning that the work comp insurer can recover up to 30% of your recovery AFTER deduction for attorney fees and costs.

So if the 3rd party case attorney fees and costs totaled $110,000 then the work comp carrier and recover up to 0.3 of $290,000, or $87,000.00

One of the first concerns after a car accident is deciding whether or not to go to the hospital or a doctor right away. Usually, the responding police will ask if you are injured or need medical treatment, if you are hurt tell them, even if you do not want to go to the emergency room right away. My advice, as an experienced car accident lawyer, is to get medical treatment sooner rather than later.

Should I go straight to the ER from the scene of the accident?

Obviously, if you have severe injuries you should go to the emergency room by ambulance as soon as possible. Maybe you do not want to go to the emergency room straight from the scene of the accident, usually that is ok. Many people do not go to the ER by ambulance right away because they want to make sure their car is taken care of by being towed away properly or they drive it home and then decide later or the next day if they need to go to the ER or a doctor.

Make a Doctor Appointment As Soon as Possible:

Regardless if you go to the emergency room or not, make an appointment with a family doctor after the accident or for an emergency room follow up. Most emergency room doctors will advise you to do this. If you do not have a family doctor to go see, call us, we will send you to a doctor that will take care of you either through your health insurance or agree to get paid after the case settles.

I Do Not Have Health Insurance, What Should I Do?

Go to the doctor! If you have been hurt in a car accident you must get medical treatment or risk permanent damage to your health. If you do not have health insurance we have doctors that will agree to treat you without health insurance. We have a network of Missouri doctors that trust us when we send them clients and assure them they will eventually get paid from a car accident settlement. Additionally, many of these doctors will agree that if you lose your case (which we never have!) that you then do not have to pay the medical bill.

How Long Should I go to the Doctor, Physical Therapy, Etc ... ?

For the sake of your physical and mental well-being you should go until you reach "MMI" - Maximum Medical Improvement. MMI is the point where you are 100% better or as close to 100% as you are expected to get. Not only is this crucial for your recovery, but if you settle your case and then realize several months later your injury is worse than you thought, you can't reopen the case. Therefore, it is very important that your injuries have completely resolved or reached MMI before settling a case.

I Missed an Appointment, is that OK?

Missing appointments on rare occasions is to be expected with today's busy lifestyles; however, do not make a habit out of it. Multiple missed appointments can look bad, auto insurance companies and their lawyers will argue that you were not very hurt, especially since you did not make it a priority to get better when you missed several appointments.

What Should I tell the Doctor or other Healthcare Provider When I see Them?
Tell them about everything that is bothering you. Just today I met with a new client that was hurt when her car was t-boned at an intersection. She told me she has had bad headaches since the accident and has been taking aspirin for relief. I asked her if her doctor recommended anything and she advised me she did not tell her doctor, because she knew aspirin or Tylenol was really the only thing you could do.

Do not do this! Tell the doctor everything that is bothering you from the car accident, even if you do not think the doctor cannot do anything about it. Take the headache example from above, imaging that if 6 months after the accident the persistent headaches are still there, you then tell the doctor, and then lets say he diagnoses you with post -concussion syndrome. When we make the head injury claim to the insurance company or a jury, the defense can argue that the victim said nothing about the headaches to any doctors for 6 months after the accident, therefore, the claim of headaches is vulnerable to a credibility attack. They will then argue that something else later on caused the headaches and that they were not caused by the car accident because they were not disclosed to the doctor.

If you are hurt in a car accident the most important things to do are:

1. Call the police;
2. Seek medical treatment;
3. Call a car accident lawyer.

Under Missouri personal injury law, asking the jury to "send a message" with their verdict is generally reserved for punitive damage cases and typically not allowed in cases where compensatory damages are the only damages sought. Most personal injury cases are compensatory damage cases; most car accident lawsuits do not alleged punitive damages, unless the driver was drunk or did some sort of other reprehensible or intentional act. So can a good Missouri trial lawyer ask the jury in closing argument to "send a message' if punitive damages are not an issue? Maybe, depending on the judge, and then it must be done correctly and carefully.

First, the judge must allow it and not sustain an objection by the defense, or even grant a mistrial because the judge feels the reference to sending a message is so prejudicial that it ruins the jury's ability to properly determine a verdict. The objection is a likely scenario and different judges will rule differently on the issue. The mistrial is and extreme reaction to the argument, however, it can happen.

Generally, Missouri courts have left it in the discretion of the trial court judge to what extent "send a message" arguments can be allowed, ruling that it has been ok in some cases because it was not prejudicial or that an objection and curative instruction corrected any potential error or prejudice. "Given the cold record on appeal, appellate courts of this state uniformly uphold trial courts' determinations of the prejudice injected by "send a message" arguments." Pierce v. Platte-Clay Electric Cooperative, Inc., 769 S.W.2d 769 (Mo 1989).

It appears it is not reversible error in compensatory damage cases if (1) the injury lawyer argues the message to be sent by the verdict is to be sent just the Defendant, and (2) the plaintiff's counsel is clear that they are asking for damages supported by the evidence. Limiting the message being sent to just the defendant avoids the argument of deterrent effect to others (reserved for punitive damage claims) and by referring to only the damages supported by the evidence a good attorney avoids the argument that they are asking for punitive damages, since they are only asking for damages supported by the evidence, not additional damages for deterrence, which is punitive in nature.

The two issues discussed above for not crossing the line into punitive damage arguments are discussed in Dickerson v. St Louis Southwestern Railway Company, 674 S.W. 2d 165 (Mo Ct App ED 1984). In this case, during the closing arguments the Missouri accident attorney stated, when referring to the verdict:

"It is going to be heard by this railroad all of the way out to the home office in San Francisco, and I ask you to make it for an amount that's proven by the evidence that we've talked about that they'll hear about loud and clear for all times.

But I ask you to make it as generous as you possibly can and let them know when you come back down here, "Mr. Railroad, we have done our job. Here is the price tag."

The defense lawyer objected to the argument and the trial court overruled the objection, meaning they allowed the closing argument. The defendant lost the trial and they appealed the case, in part claiming the arguments above were improper "send a message" arguments that are reserved for punitive damage cases. The Eastern District Appeals Court upheld the trial court's ruling, thus agreeing that the argument was permissible, because:

1. Trial court has broad discretion in ruling on propriety of jury argument
2. The argument does not expressly request the jury to punish the defendant
3. Plaintiff limited his damages request to "an amount proven by the evidence"
4. Plaintiff limited his message to be sent to defendant's corporate headquarters
5. Plaintiff did NOT refer to the deterrent effect the verdict might have on others.

Additionally, the best Missouri injury lawyers know not to make the "Send a message" argument the theme of their closing, they state it and move on. "When the send a message argument becomes the theme of the entire closing, it constitutes reversible error." Smith v. Courter, M.D., 531 S.W.2d 743 (Mo 1973).

The Courts have also allowed defense lawyers to argue to a jury to reject the plaintiff's claim and in doing so send a message to society that litigation is too common and must be deterred. In the case of Beis v Dias, 859 SW2d 835 (Mo 1993), send a message was argued by the defense to send a message to a litigious society not to sue doctors for complications that are accepted risks of the surgery.

Defense argument to jury:

"[Y]ou have a golden opportunity here to help correct one of the most litigious societies--the most litigious society in the world. You have an opportunity--

(objection - overruled)

"You have an opportunity here to take the burden off of Dr. Dias's back and place it where it belongs. These people should not recover any money whatsoever. We cannot encourage this type of activity. Folks, look, I don't deny and I've never tried to deny and I told you this up front, that she had complications develop as a result of the surgery. But they are accepted risks of the surgery. They are known risks of this surgery and unfortunately, it happened to this lady. But we are here to determine whether or not Dr. Dias in any way was negligent. Did he fall below an acceptable standard of care with reference to his treatment, his care, his surgery of this woman?"

1. It was not the ongoing theme of defendant's closing;
2. After objection defense counsel moved from the argument even though the objection was overruled;
3. Again holding that the trial court has "superior opportunity to appraise the impact of the argument to the jury, we accord the trial court broad discretion in this area of closing argument"

I personally disagree with the court's ruling in this situation, as the defense lawyer was improperly asking the jury not to determine their verdict based on the evidence, but was asking them to send a message to society about the dislike for medical malpractice lawsuits. He was not asking for punitive damages in the form of a money verdict, but a sort of punitive damages by a defense verdict and that would send a message to society.

The case law really comes down to the fact that the trial court has discretion to make these decisions and that the court of appeals will not tamper with that decision unless their is abuse of discretion by allowing very improper arguments to be made. So depending on the judge, a good lawyer may be able to argue "send a message", and if they keep it within the parameters discussed above, the court of appeals should not second guess it.

Continue reading "Missouri Law on "Send a Message" Arguments to a Jury in Non-Puntive Damages Cases" »

What is an "Owned Vehicle Exclusion"? First you need to understand that UM coverage and UIM coverage are the type of coverage that follows the insured person, not the vehcile if they are hurt by a negligence driver with either no insurance (uninsured motorist or "UM") or with little insurance (under-insured motorist or "UIM"). For discussion about different types of auto insurance liability coverage in Missouri see: Uninsured and Under-insured Motorist Coverage - Breaking Down Car Insurance Coverage in Missouri. The "owned vehicle exclusion" tries to say if you are injured while operating a vehicle not included on the insurance company's policy you have with them that includes UIM or UM coverege, then they claim the UM or UIM coverage does not cover you because you were operating a vehicle not covered by them.

In a Missouri Supreme Court opinion just issued January 8, 2013, the Missouri Supreme Court overturned the trial court holding that the injured victim in a St Charles motorcycle crash has insurance limits of $400,000 available under his under-insured ("UIM") motorist coverage because he has separate UIM policies on 4 different vehicles and the four separate $100,000 UIM coverage policies "stack" to equal a total of $400,000 in available UIM insurance coverage for the motorcycle accident injuries. Additionally, holding that the "owned vehicle exclusion" under the policies did not apply to deny coverage of the UIM amounts. See Missouri Supreme Court Opinion in Manner v. Schiermeier, SC # SC92408 issued 1/8/2013.

The trial Judge in St Charles County and the Eastern District Court of Appeals both denied the coverage to the injured victim holding that the UIM policies were not recoverable under the "owned vehicle exclusion". These owned-vehicle exclusions state: "This coverage does not apply for bodily injury to a person: ... While occupying, or when struck by, a motor vehicle that is not insured under this policy if it is owned by you or any resident of your household.". The insurance company claimed that the injured cyclist owned the motorcycle he was riding when hurt and that, because it was insured under a different policy than the ones insuring the other three vehicles, this owned-vehicle exclusion precluded coverage under those policies.

This case turned on very specific facts and the Supreme Court's view that the insurance company did not prove ownership and that the policy's definition of ownership was vague and ambiguous, therefore, any ambiguity is construed in favor of the insured and against the insurance company. In this case the victim had partially paid his uncle for the motorcycle and was in possession of it, however, he did not have title to the bike and had not paid it off, therefore, it was argued that he did not "own" the motorcycle. "Ownership" was not defined by the insurance policy, so the court leaned to the injured motorcycle rider when interpreting the policy provisions that were vague.

The St Charles motorcycle lawyers that handled this case did an excellent job getting the maximum recovery for their client. This is an example of why it is so important to hire good lawyers to navigate your way through an injury claim or lawsuit. Having a Missouri personal injury attorney in this case meant the difference between $100,000 recovery and a $400,000 recovery.

If you have been hurt, call us, (314) 863-0500 or contact us online.