Dad’s Car

Going to do a couple newsletters on summer vacation. The statute of limitations has expired.

Thirty years ago I read a column by Mike Ryoko, the legendary writer for the Chicago Tribune. He was talking about a buddy who said he and his new girlfriend were going on a trip to see “if they clicked.” Ryoko’s advice was rent a station wagon, borrow seven kids, and drive to the Grand Canyon. Then see if you “clicked.”

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Lang v. Goldsworthy – The Court Skillfully Avoids Answering the Question of Whether or Not the Health Care Affidavit Statute is Constitutional, but Does the Question Still Remain?

“As with eggs, there is no such thing as a poor doctor; doctors are either good or bad.”

– Russell L. Cecil & Robert F. Leob, Diseases of the Ductless Glands, Textbook of Medicine (9th Ed.), Introduction.

  1. Introduction

In Missouri, a Plaintiff wishing to file a claim for Medical Malpractice is required under Missouri statute to have a potential expert witness lined up and ready to state that the Defendant doctor was negligent before his/her attorney can take action to file a lawsuit. Without a “legally qualified health care provider” willing to file an affidavit with the court stating:

1) that the medical care Plaintiff received from Defendant doctor failed to live up to the standard of reasonable care for the particular medical procedure or treatment received, and;

2) that the failure to use such reasonable care caused or contributed to cause Plaintiffs injury,

Plaintiffs case will be dismissed by the court far before it ever gets anywhere near a jury.

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Missouri revised statute §490.715: the Missouri General Assembly’s continued attempts to thwart perceived “double dipping” under the collateral source rule

“Did you just double-dip that chip?”

“Excuse me?”

“You double-dipped the chip.”

“Double-dipped? What are you talking about?”

“You dipped the chip, you took a bite, and you dipped again.”

“So?”

“That’s like putting your whole mouth right in the dip. Look, from now on when you take a chip, just take one dip and end it.”

“Well, I’m sorry Timmy, but I don’t dip that way.”

“Oh, you don’t, huh?”

“No. You dip the way you want to dip, I’ll dip the way I want to dip.”

– Timmy and George, Seinfield in “The Implant”

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The Scottsdale Effect: Bad Faith Claims Can Now Be Brought by Excess Insurance Companies and are Easier to Prove for All

The History of Bad Faith Claims in Missouri

When insurance litigation issues first started to appear before courts, the focus was on coverage interpretations and technical policy defenses. Anthony G. Fussner, Overview of Bad Faith Litigation in Missouri, 62 Mo. L. Rev. 806, 808 (1997), http://scholarship.law.missouri.edu/mlr/vol62/iss4/3. Insurance policies were considered contracts and damages that were awarded were generally those available for breach of contract. Id. However, eventually courts started also allowing insured plaintiffs to bring various types of bad faith claims against their insurance companies. Id. These bad faith claims allowed for damage awards above and beyond the insurance policy limits. Id. Bad Faith claims were also considered by the courts to be actions in tort, not in contract. Id. at 823. This is an area of law that has continued to expand in Missouri under more recent rulings by the Missouri Supreme Court.

Bad faith liability claims generally fall into two general categories – either first party claims or third party claims. Fussner, supra at 809. First party insurance reimburses the insured for losses covered by the contractual terms of the actual insurance policy. Id. In a first party claim, the insured would bring a breach of contract action or an actionable tort against his insurer for failure to reimburse the insured on a claim covered by a policy. Id. at 809. 1

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Stay Safe This Spring!

Spring is a busy time for landscaping, but don’t get so caught up in jobs that you forget to work safely! Check out these safety tips to make sure you are taking care of your health and safety:

  • Stay visible and dress for safety: Motor vehicle accidents are the leading cause of fatal accidents among landscapers. While at work, landscapers should always wear high-visibility colors. In addition, long pants, sturdy shoes, gloves, and ear and eye protection are a must for any landscaper. Dress for the weather and avoid any loose clothing or jewelry that could get caught in equipment.
  • Keep tools sharp: A dull blade is far more dangerous than a sharp one because the user has to exert a lot more force to get the job done. Keeping hand tools in good working order can also help protect landscapers from repetitive-stress injuries.
  • Know your machine: A lot of power tools – like tillers, blowers, mowers, and trenchers – can cause severe injuries if they malfunction or are used incorrectly. Workers should always read the safety manual before using a new tool for the first time.
  • Be careful with repairs: Before attempting to fix or clear a jam from a power tool or mower, make sure that the power supply is turned off and all the blades have stopped moving. Too many landscapers experience tragic amputations from the spinning blades in lawnmowers and other tools.

Born On Third Base

A few years back my wife and I hosted an event to raise money for Food For The Poor. The room was filled with success. People who were at the top and some that were headed there.

That night I talked about being born on third base. Some of you have heard the comment ‘He was born on third base and thinks he hit a triple”. It is not a compliment.

Some in the room refused to believe they hadn’t done it all themselves. Overcome hardships, obstacles. Fought their way through to the top. And some surely had. Which meant to them, they deserved it. They earned it. They had shown they were better.

I stood in front of this group, seated around tables, following a sit down dinner, an open bar at the country club, seeking to get them to donate to a group whose only goal was to feed the poor of Central America. The ones who weren’t born on third base and would never get there.

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It’s Déjà Vu All Over Again: Missouri Enacts New Medical Malpractice Damage Caps in Missouri

“If at first you don’t succeed.  Try, try, again.”

 Thomas H. Palmer, Teacher’s Manual

On May 7th, 2015, Missouri Governor Jay Nixon signed a measure resurrecting medical malpractice caps in Missouri.  Mary French, Missouri Medical Malpractice Caps Signed into Law, St. Louis Post Dispatch, May 8th, 2015, http://goo.gl/IWIHG7.  The new measure was enacted just three short years after the Missouri Supreme Court struck down non-economic damages caps for common law medical negligence cases as unconstitutional.  Id.  This 2015 attempt by the legislature to institute such caps in Missouri is a much more complicated attempt to apply non-economic damages caps. It also appears the Missouri General Assembly is taking a swing at using legislation to abolish a common law cause of action for medical negligence and replace it with a purely statutory one so that it can avoid constitutional challenges to such damage caps.

Prior Attempts by Statute to Limit Medical Malpractice Claims in Missouri

Missouri has been attempting to cap medical practice damages since 1986 through Missouri Revised Statutes chapter 538, “Tort Actions Based on Improper Health Care.” Rachel Lawrence, Constitutionality of Caps: Upholding Missouri’s Right to Jury Trial and the Non-Economic Damages Debate, The, 78 Mo. L. Rev. 601-02 (2013), http://goo.gl/pxTus9.  Contained within its sections, these various versions of chapter 538 have always included limits on non-economic damages.  Id. at 602.  Missouri’s first attempt to cap medical malpractice damages in 1986, limited a plaintiff’s recovery to $350,000, and adjusted that amount yearly by the Missouri Department of Insurance to reflect inflation.  Id. at 605.  By 2005, the limit had reached $579,000.  Id. at 606.  In addition, plaintiffs could recover multiple caps from one injury when there were multiple defendants.  Id.  On August 28th, 2005, the Missouri Legislature decided to change the medical malpractice caps again, by returning the non-economic damages cap to $350,000 with no yearly modification allowed due to inflation, and limiting recovery to one cap per plaintiff no matter the number of defendants.  Id.

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Res Ipsa Loquitur in Missouri

Introduction to Res Ipsa Loquitur:

In a negligence case, a plaintiff has the burden of proof. In other words, it is the plaintiff’s responsibility to show the existence of facts which demonstrate they should recover in their case. In a negligence action, therefore, the plaintiff must prove that there was a certain standard of care that was breached and proximately caused damages. Ordinarily, negligence cannot be inferred from the mere fact of injury.[i] Permitting recovery based on injury alone (without evidence that specific conduct was actually unreasonable) would discourage publicly profitable activity. Therefore, plaintiffs are generally required to prove a specific act of negligence to recover damages.[ii] But, for a limited class of cases, an exception – res ipsa loquitur – exists.[iii]

Res ipsa loquitur is premised on the “doctrine of probabilities.”[iv] If, based on common knowledge, the occurrence is ordinarily caused by negligence, res ipsa loquitur allows the jury to infer negligence from the circumstances surrounding the accident.[v] Res ipsa loquitur does not shift the burden of proof.[vi] In a res ipsa loquitur case, as in any other case, the plaintiff starts out bearing both the burden of proof and the burden of evidence.[vii] By showing, for instance, that plaintiff was a passenger, the defendant a carrier, a train wreck, and consequent injury to him, plaintiff makes a prima facie case, since these facts raise an inference, or, as some authorities say, a presumption or “prima facie presumption,” that the accident was occasioned by the defendant’s negligence in some way. The plaintiff still carries the risk of non-persuasion, and must show by the greater weight of the evidence that he was injured as a result of the defendant’s negligence.[viii]

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Rights of Seamen under Jones Act

DISCUSSION

A person injured while working at sea, on a navigable river or even aboard a docked ship has a number of remedies available to compensate for those injuries. One of the most frequently- used causes of action arises from a century-old law called the Merchant Marine Act of 1920, more commonly known as the Jones Act.1 Because the Jones Act is a federal law enacted pursuant to Congress’ power over maritime law, an injured worker has the same basic rights available no matter where the injury occurred.2 There are a number of benefits – and some drawbacks – to this approach, but the overall purpose of the Act was to protect those who take on risky or dangerous work for the benefit of our country’s maritime commercial enterprise.3 What follows is a look at the purpose of the Jones Act as well as a discussion of just who qualifies as a “seaman”, who can be sued under the Act, how when and where to sue, what kinds of injuries have been covered, and the kinds of limitations Congress and the Supreme Court have placed on Jones Act cases.

I. The Jones Act – Purpose and Effect

Prior to 1920, an injured seaman had a right to sue a ship-owner for his injuries if the vessel itself was unseaworthy, but not for cases where the employer may have negligently caused the worker to be injured.4 Further, a few states – those did allow for on-board negligence or wrongful death suits – followed the old common law rules of “contributory negligence” and “assumption of risk”, as well as the “fellow servant doctrine”.5 These rules meant that if the seaman was even a little bit responsible for his injuries, or if it could be shown that the worker knew the dangers and took the job anyway, or if the worker was injured because of a co-worker’s negligence, the employer would not have to pay a dime.6 Suffice to say, seamen had a rough time winning compensation for many work-related injuries. Often, the most a seaman could hope to win was for what was called “maintenance and cure”, which simply required the employer to provide food, lodging and necessary medical services during the seaman’s service to the ship.7

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Forget the Soup: Missouri says “No Noneconomic Damages for You!” to Uninsured Motorists

“If you want to play, you gotta pay.” Stephen King, Duma Key

On October 11th, 2013 after the Missouri Legislature was able to override a veto by Governor Jay Nixon, Missouri joined several other states in having a “No Pay, No Play” law on the books.[1] §303.390 RSMo 2015. The idea behind this law would seem to be to further punish those who drive in Missouri without having proper insurance. Essentially, the “No Pay, No Play” law prevents those who drive without insurance from recovering anything other than medical bills, lost wages and arguably lost earning capacity if they are injured in an accident. (See, footnote 3). This new law states as follows:Continue Reading