FAQ

Does Missouri law contain time limits for filing a claim in the case of injury or death?

The time limits are known as “statutes of limitations.” In all states, the specific deadline will vary depending on the type of injury and the circumstances. As a general rule in Missouri, for example, a personal injury lawsuit must be filed within five years from the date the injury occurred. However, there are shortened time limitations such as with worker’s compensation, medical malpractice matters or if a governmental entity may be responsible for the injury or death. Wrongful death claims in Missouri generally must be pursued within three years from the date of death. Keep in mind that if you wait until the time limit is upon you, you may have trouble finding a lawyer who can take the case on short notice. Thus, it is important that if you have suffered a personal injury and have reason to think that someone else caused the injury, you should immediately contact an attorney. Most attorneys handling personal injury or wrongful death cases will be happy to provide a free evaluation of your case. Please complete the free evaluation box or call Pam at 314-727-2585.

What should I do in case of an auto accident?

Information to be gathered: names, addresses and telephone numbers of all drivers, passengers and registered owners of the vehicles; names of insurance companies and policy numbers; location of the accident and how it occurred; names of police officers who came to the scene; damages to the vehicles and the injuries to those involved. Jot down the names, addresses and telephone numbers of the witnesses and any comments they make such as “ he ran the red light” or “she really plowed into your car.” Make particular note if any individual is under the influence of drugs or alcohol or if anyone claims responsibility with such comments as “I blew it”; “I messed up”; “I took my eyes off the road”, etc.

You should pursue medical treatment within 24 hours or sooner if you have suffered very serious injuries. If you wait 2 or 3 weeks, the insurance adjusters will raise the question – if you were seriously injured, why the delay in getting medical care?”

You should take pictures of your car and any other vehicles involved in the accident. Similarly, you should have your injuries photographed before they have a chance to heal. Keep a diary of the pain you experience from the injuries as well as the medications prescribed for your pain. Keep receipts for your out-of-pocket expenses such as car rentals, prescription drugs, hiring someone to do household chores such as cleaning the house or mowing the lawn. As you might imagine, the insurance adjuster is not going to take your word for the expenses, so keep good records.

Should I talk to my insurance company?

Your insurance company should be notified as soon as possible. If you do not let the insurance company know of the accident, they can attempt to deny coverage for the accident.

However, before giving detailed statements, especially taped recorded interviews, to your insurance company or the insurance company for the driver who struck you, you need to think carefully about whether you may first want legal counsel. Insurance companies frequently want to settle fast and cheaply before your injuries may be fully known. If you reach a settlement and later find that your injuries are more serious and you have more medical bills, you will have difficulty getting any more funds from the insurance company.

Should I release my medical records to the defendant’s insurance company?

You should not sign any release of information document, including medical records release without first talking to an experienced personal injury lawyer. You do not want the insurance adjuster to gain access to information that may be harmful to your case.

Do I need an attorney?

Yes. The insurance adjuster is not going to be looking out for your best interests. The adjuster’s job is to help the insurance company and the individual or business who caused your injury. In fact, the adjuster may try to get you to agree to misleading statements of how the accident occurred and this will come back to haunt you if the case goes to trial. You will be “low-balled” regarding settlement. He or she will try to make your case seem unimportant. Without legal help, you will have no way of determining the true value of your case. For a very minor accident, you may do fine in negotiating a settlement directly with the insurance company for your property damage but if you have serious personal injuries, you need an experienced attorney.

An attorney can also find out how much insurance is available to compensate you. Counsel can also address complicated insurance questions such as whether uninsured motorist coverage is available, whether multiple policies of the uninsured motorist coverage can be stacked to provide additional coverage, whether underinsured motorist coverage is available, whether the defendant has excess insurance coverage or a general liability umbrella policy.

You should never sign any papers sent by the insurance company without first talking to legal counsel. A release called a general release will keep you from suing other people liable for your injuries, even though the insurance company will not compensate you for those additional claims.

What papers should I bring with me when meeting with counsel?

The more information that you can provide to your lawyer, the easier it will be for him or her to advise if your claim will be a strong one. Police reports are very helpful in that they contain eyewitness information and details about the conditions surrounding car accidents, fires and assaults. Copies of medical reports and bills from health care providers will help show the extent and nature of your injuries. If the person who caused your injury has provided you with a business card for his or her insurance company, you should take it to the meeting along with any photographs of the accident scene, of the property damage and of your personal injuries. If you have none of the foregoing documents at the time of your first appointment, you should not worry, as your attorney will be able to obtain them in the course of his or her investigation of your claim.

How are property damage claims handled?

Most property damage claims are handled quickly and efficiently and usually do not require an attorney. If the accident is not your fault, the other driver’s insurance should pay to fix your car unless it would cost more to fix your car than it is worth. If this is the case, your car is considered “totaled” and you will only receive the market value of your car before the accident. Many repair shops will help you by providing free estimates for insurance purposes.

What if the driver who hit me has no insurance or the bare minimum and I have very serious injuries?

Assuming that you have uninsured or underinsured motorist coverage, you may be able to collect from your own company if you are injured as a result of the negligence of someone who has little or no insurance coverage. If you were a passenger in a car struck by an uninsured or underinsured driver, you might be able to pursue a claim against the insurance company for the owner or driver of the car in which you were riding. It is important to explore all your insurance options, which admittedly can get pretty complicated and thus, you need to consult legal counsel.

What is meant by the term “negligence” in the context of personal injury suits?

The term means pretty much the same as in everyday conversation – that someone was careless. A basic statement of legal negligence is that a person “did not act as a reasonably prudent person would under the same circumstances.”

A finding that a person has been legally negligent involves several different elements. For example, most people would agree that a driver who runs a stop sign and hits a pedestrian was careless, but was he negligent? To find legal negligence, a court must first find that the person “breached” a duty owed to others. In this example, every driver owes a duty to others to be careful when driving a car and running a red light violates this duty.

The negligent act must also cause damage. If the driver broke the pedestrian’s arm, this injury could mean that the driver was negligent. Finally, the damage caused by the negligence must have been “foreseeable.” Because most people would expect that a driver who runs a stop sign might hit someone, chances are that a court would find the driver has been legally negligent.

In real life, most negligence questions are more complicated than the above example and may be even more difficult if more than one person was negligent. If you think you have been injured and you think it was someone else’s fault, complete the free evaluation box or call Pam at 314-727-2585.

What is a product liability claim?

This is a kind of civil lawsuit against the seller, distributor or manufacturer of a product, which claims that a person or group of people were injured by a product that was defective or not suitable for the use for which it was advertised. You may have a valid product liability claim if there is a defect in the manufacturing of the product such as an auto frame is improperly welded to the body at an assembly plant or baby food is contaminated during the production process. If a product is improperly designed such as flammable pajamas for children, there would be a basis for a valid product liability claim. A failure to warn or inadequate warning may also form the basis for a product liability claim. An example would be an over the counter drug without a warning of possible side effects or against excessive consumption.

The key element in product liability law is that a person who suffers harm need not prove negligence or carelessness on the part of the defendant. Put another way, it is irrelevant whether the manufacturer or the supplier exercised great care; if there is a defect in the product that causes harm, liability results.

What is meant by the term “comparative fault” in the context of personal injury cases?

Missouri allows a jury (or a judge if the plaintiff has not requested a trial by jury) to assess fault among the parties to a personal injury case. For example in a slip and fall case, the jury might assign 20% fault to the customer for failing to keep a proper lookout for ice and snow on a sidewalk in front of a retail store but the owner is assigned 80% fault for failing to remove the snow and ice from the sidewalk. If the jury awards damages of $50,000.00, the plaintiff nets $40,000.00 after deducting the amount relating to the 20% fault assessed to him or her.

What’s my case worth?

There is no set formula for assigning value to a case. There are many factors to consider: for example, whether liability is clear, the extent and permanency of your injuries, whether you have lost wages; the extent of your medical treatment, the length of time you continue to experience pain and suffering from the accident; significance of pre-existing medical conditions; where the accident occurred; the amount of insurance available; whether aggravating circumstances were present such as excessive use of alcohol; who is the defendant – if a company, where it is doing business. Call Pam at 314-727-2585 for a free no obligation consultation or use the convenient free immediate case evaluation submission form.

What damages can I ask for in my personal injury lawsuit?

Economic damages are recoverable such as past and future medical bills; past-lost wages; loss of earning capacity in the future and property damage. Non-economic damages are awarded to compensate for pain & suffering and disability. The amount of compensation for non-economic damages is directly related to the significance of the injury. Your spouse may also have a loss of consortium claim.

In a small number of cases, circumstances may allow for a punitive damages claim. Punitive damages are awarded if the injured party can prove that the defendants acted in reckless disregard for the life and safety of the plaintiff. The purpose of an award of punitive (also called exemplary) damages is to prevent the defendant from behaving in that way in the future and to deter others from acting in a similar manner. There is a punitive damages cap of $500,000, or 5 times the amount of the plaintiff’s net judgment, whichever is greater.

What is meant by “discovery”?

Discovery is the process for one party to learn about information, which the other side has about the claim or defense involved in a pending lawsuit. There are several methods allowed under the rules governing lawsuits for the parties to discover the facts: written interrogatories; depositions; request to produce and request for admissions.

What is a deposition?

A deposition is one of the tools of the discovery process to determine the facts in the case. It generally takes place in a law office conference room with a court reporter, the parties to the lawsuit and their lawyers. The person who is being deposed (by one of the attorneys in the case) is sworn in by the court reporter that takes down the testimony and later prepares a written transcript. The person giving the deposition could be a party, a witness to the accident or an expert such as a physician, a CPA or an engineer. Frequently, expert witnesses are retained to assist in determining the amount of damages sustained by the plaintiff and to present this evidence to a jury.

What is the typical fee arrangement in personal injury/wrongful death cases?

The vast majority of personal injury/wrongful death cases are handled on a contingency fee basis ranging from 25%-40% of the amount recovered either by way of settlement or trial. For example, worker’s compensation claims are generally handled on a 25% basis and medical malpractice cases, including nursing home malpractice, will frequently involve a 40% contingency fee. Generally the attorneys will advance expenses such as filing fees, deposition costs, expert witnesses fees but with a provision in the written fee contract signed by the client and counsel, that expenses will be reimbursed from the amount recovered on behalf of the client. Most contingency fee contracts provide that if there is no recovery for the client, he or she is not obligated to reimburse the attorney for the out-of-pocket expense, which has been paid, by the attorney. Generally contingency fee contracts do not cover any property damage settlements. Put another way, a contingent fee is charged only on the personal injury portion of your settlement or judgment.

How long will it take to get my case resolved?

The answer to this question can vary depending on the complexity of the case such as how clear is liability, which insurance companies are involved, how serious are the injuries, is treatment completed or ongoing and where will the suit be filed. Statistics show that a vast majority of all cases settle prior to trial. Some cases can be resolved without the filing of a lawsuit. If suit has to be filed and a settlement is not reached, the trial would generally occur 12-24 months after filing suit.

Does Medicaid or Medicare have a lien for medical bills, which have been paid by one of those government programs?

Yes. Under Section 208.215 of the Missouri statutes, Medicaid through the Mo Department of Social Services can assert a lien to recover all amounts paid by it for medical services if a recipient recovers damages from a third party for negligence and the claim resulted in injuries for which medical expenses were paid by the Department. There is also a lien by Medicare. Your medical insurance provider may also assert a claim for reimbursement. Generally, these claims are subject to negotiation.

What is meant by mediation?

Mediation is initiated either by one or both of the parties or by the trial judge. This process involves the parties and counsel meeting prior to a trial before a person called a mediator. A mediator is often a retired judge or a lawyer practicing in the community. Both sides present their cases in condensed form to the mediator who helps the parties reach a compromise. The information exchanged in the mediation conference is confidential and cannot be used later at the trial. If the parties do not settle, then the matter is tried.

If I signed a consent form with a health care provider, are my rights to pursuing a medical malpractice claim waived?

No. The consent form signed prior to a procedure or surgery simply acknowledges that the doctor has explained the nature of the medical problem, the recommended as well as alternative treatments, the risks inherent with those treatments and that you have had a chance to ask questions before agreeing to the recommended treatment. The signing of the consent form does not waive a patient’s rights to a potential medical malpractice claim.

Am I limited in the amount of non-economic damages recoverable in a medical malpractice case?

Yes. There is a cap of $350,000.00 irrespective of the number of defendants. In other words, you cannot recover $350,000.00 against a physician and then the same amount again from a hospital. The cap applies to non-economic damages, that is, damages for pain and suffering, mental anguish, inconvenience, physical impairment, disfigurement, loss of capacity to enjoy life, and loss of consortium. The cap does not apply to economic damages such as medical bills and lost income.

Do I need to have an expert to pursue a medical malpractice claim?

Yes. Generally, the attorney whom you hire will have the case reviewed by at least one expert in the same field or specialty of the health care provider in question. For example, if the potential claim were against a dentist, the attorney would have the file reviewed not by a cardiologist but by a dentist. No later than 90 days after filing of the action for medical malpractice, including nursing home malpractice, the attorney must file an affidavit with the court stating that “he or she has obtained the written opinion of a legally qualified health care provider that the defendant failed to use such care as a reasonably prudent and careful health care provider would have under similar circumstances and that such failure to use such reasonable care directly caused or directly contributed to cause the damages claimed in the petition.”

What is a wrongful death claim?

This is a claim arising from the death of an individual caused by the conduct of another.

Who can file a wrongful death suit?

Section 537.080 provides that close family members such as spouse, parents or children may file one action against a defendant. If siblings but not a spouse, children or parents, survive the deceased the siblings are entitled to file suit.

What damages are recoverable in a wrongful death lawsuit?

Section 537.090 describes the damages to be awarded by a jury: pecuniary losses such as funeral bills, medical expenses, lost wages, including future earnings; lost inheritance as well as reasonable value of the loss of emotional support and of companionship. The aggravating circumstances (akin to punitive damages) surrounding the death may also be weighed by the jury. The statute specifically forbids recovery of damages for grief and bereavement. If a loved one has been a victim of wrongful death, please use the convenient immediate case evaluation submission form.

How are the damages calculated in a wrongful death lawsuit?

There are many factors used in calculating the damages: how dependent the plaintiff – the family member bringing the suit - was on the deceased; the nature of the relationship between the plaintiff and the deceased; the age of the deceased; the future earnings and the presence of any comparative fault. Note the previously discussed cap on non-economic damages in medical malpractice cases.

What if my loved one was killed by a drunk driver, do I have a wrongful death claim in Missouri against the tavern where the driver consumed the alcohol?

Section 537.053(2) provides for a claim if you can show by clear and convincing evidence that the seller knew or should have known that intoxicating liquor was served to a person under age 21 or knowingly served intoxicating liquor to someone who was visibly intoxicated.

Missouri Supreme Court Rules do not permit attorneys to advertise that we specialize in any particular field or area of law. By describing the areas of law in which I practice is not intended to suggest specialization in those areas.

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