Missouri’s Worker’s Compensation System Is Unfair And Unconstitutional

The Missouri’s Worker’s Compensation Act, which takes away injured workers’ right to a jury trial and substitutes very limited and unfair administrative claims instead, is an unconstitutional, inadequate and harshly unfair system in drastic need of completely being overhauled or eliminated entirely.

The benefits provided by the Missouri Worker’s Compensation Act have been eroded over the years to such a degree that the little legitimacy this system ever had is now clearly gone.  The Act was originally  but unsuccessfully challenged as unconstitutional because it deprived citizens of their constitutional right to a jury trial under both the Missouri Constitution and the United States Constitution. The severity of that improper deprivation has been increased over time. Worker’s rights have been repeatedly cut and diminished in so many ways that it’s now time to finally acknowledge the unconstitutionality of this system and do away with it, restoring to workers their rights guaranteed by both of those Constitutions.

To understand this important point, it’s necessary to understand how the system used to work before worker’s compensation was enacted, how the worker’s compensation system originally worked, and how it’s been changed over time to reduce benefits to workers.

History of The Workers Compensation Act in Missouri

Before the worker’s compensation system was enacted in Missouri, a worker who got injured at work through no fault of his own could recover in court from the employer if the employer or any other employee was at fault.  While workers got nothing when it was their own fault, they could recover fair verdicts from juries when the injury was not their fault.

Original Court System:

  1. Jury trial
  2. Absolutely no limits or caps on how much a jury can order paid
  3. Injured worker has to prove fault or carelessness (negligence) of the employer
  4. Injured worker had to prove that injury was not their fault

Enactment of the Missouri Worker’s Compensation Act

Missouri’s  worker’s compensation system, which took away the right to a jury trial and substituted the decision of an administrative law judge, was first put in place in 1929.

Under this Act, the general rule is that a person who gets hurt at work cannot sue his employer in court for those injuries, but instead has to file a worker’s compensation claim and get benefits that way. The whole worker’s compensation system is based on taking away from the employee the right to sue the employer in court and instead substituting the right to file a worker’s compensation claim.

Original Worker’s Compensation System:

  1. No jury – judge decides case
  2. Very strict limits on maximum recovery – body parts chart literally says how much each body part is worth
  3. Injured worker gets very limited benefits, even if the injured worker was completely at fault

The Worker’s Compensation Act was immediately challenged as being unconstitutional, because the Bill of Rights to Missouri’s Constitution specifically says:

“That the right of trial by jury as heretofore enjoyed shall remain inviolate.”

Missouri Constitution, Article I, Section 22A. The challenge to the constitutionality of the worker’s compensation system was based upon the fact that it completely does away with the workers right to a jury trial.

Despite the crystal clear wording of the Constitution, the Missouri Supreme Court held that the system was not unconstitutional even though it took away the right to a jury trial.   The Supreme Court essentially said that even though the Worker’s Compensation Act didn’t permit jury trials, this was acceptable because the claim it substituted instead was essentially the same thing, and sometimes more favorable. (A workers compensation claim can be more favorable to the employee, for instance, in a situation where an employee is injured due to their own carelessness. In that case, the employee would always win under the original Worker’s Compensation system, whereas under the old court system they would not have recovered anything.)

The simple fact of the matter, though, is that it’s not up to the Supreme Court to decide on what is an appropriate substitute for a constitutional right. The Constitution says the citizen has a right to a jury trial, so the citizen gets a jury trial. Period. No matter how well-intentioned, any law that takes away the citizen’s constitutional right to a jury trial on their negligence claim was, and is, clearly unconstitutional.

Because the Missouri Supreme Court allowed it,  the worker’s compensation system remained in place.  For almost 100 years now, claims relating to work injuries got filed in the Division of Workers Compensation, and workers who tried to sue their employers in court routinely got their cases thrown out of court.

Changes To The Worker’s Compensation System Over Time

Over time, insurance industry lobbyists got the Legislature to put more and more loopholes into the worker’s compensation system, all designed to minimize payments and benefits to workers, cut down on claims, and increase insurance companies’ and employers’ bottom lines.  The unfairness of the Act is clear to anyone who carefully reads and understands it.

Yet because this is such an arcane topic, the general public is completely unaware of how unfair the system is, until they or a family member or friend get hurt and experience it first-hand.

How Is The System Unfair?

As originally enacted, there were no penalties on employees if they were at fault in causing their injuries.  That, in fact, was the main selling point of the Worker’s Compensation act in the first place: even though the amounts payable under the Act were very low, the trade-off was that the injured employee got paid no matter what.

But after successfully taking away the employee’s right to a jury trial, the insurance lobbyists started cutting into what little benefits the injured employee did get under that Act.  There are many examples of this unfairness, too many to explain in detail here, but here are a few.

What Are Penalties Applied to?

Before we start to talk about the fairness of the penalties in the Act, it’s important to understand what the penalties are applied to.  Many people mistakenly think that the penalty percentages are only applied to a worker’s claim for a lump sum payment, after her medical bills and wages have been paid.  This is incorrect – the penalties are applied to all benefits under the Act.

Let’s illustrate how severe this is.  In a typical situation under the Act, when a worker gets hurt at work, she gets 3 type of benefits:

1.  medical bills are paid in full (though the employer gets to pick all of the doctors and control all treatment);

2. temporary total disability (66% percent of the worker’s average pay while completely unable to work (in the objective opinion of the doctor hand-picked by the comp carrier), but subject to a “cap” or maximum amount, regardless of how much was earned before); and

3.  permanent partial disability (essentially a lump sum based on the body parts chart published by the Missouri Division of Worker’s Compensation, based on the Act, times your average weekly wage.  This, too, is subject to a “cap” or maximum amount, regardless of how much was earned before).

So, for example, take the case of a worker who falls on ice at work,  and is seriously injured, breaking several ribs, one of which punctures her lung, collapsing it.  She has chest surgery, is in the hospital for 2 weeks, incurs medical bills of $40,000, and is out of work for 3 months, losing $10,000 in wages based on her $40,000 salary.   (The carrier is supposed to automatically pay her those wages at $512 per week (2/3 of her weekly rate) while she’s out of work.)  Let’s assume that her lump sum “permanent partial disability” claim is arguably worth $26,700 (15% of the 400-week “body as a whole” level, calculated at $445 per week because her actual income of $769 per week is over the maximum permitted PPD rate.)

So in this case, the total benefits payable under the Act are $73,356:

Medical Expenses:                                                 $40,000

Temporary total disability (TTD):                    $6,656

Permanent partial disability (PPD):            $26,700

Total:                                                                              $73,356

It’s important to realize that she didn’t actually get $73,356.  The carrier paid the vast majority of it ($40,000) directly to the hospital.  They also paid her weekly wages of $512 (which was significantly less than the net she got on her usual weekly gross of $769, causing her to get behind on her bills).  And the PPD portion of her claim is always a grey area, subject to negotiation at the conclusion of treatment and after the employee has recuperated as much as possible.

So when this article talks below about, for example, a “50% penalty”, we’re not talking about the comp carrier deducting 50% from the PPD and offering a lump sum payment of $13,350 to settle the claim.  We’re talking about the insurance company claiming 50% of the whole $73,356, and demanding that the injured employee pay the insurance company $9,978.  (Their math is calculated as 50% of $73,356, so the amount the carrier should have paid is $36,678.  Since in this example they already actually paid $46,656 ($40,000 in medical bills plus $6,656 in TTD), under this framework the employee owes the insurance company $9,978).

Insurance companies sometime claim these penalties early on, before the case is even in the Division of Worker’s Compensation and refuse to even pay the medical bills (or only pay 50% of them). That frequently leaves the employee with many thousand of dollars in unpaid medical bills, short on cash because the insurance company isn;t paying their TTD wages due to a unilaterally claimed penalty,  and desperate for money at the time they need it most.

Examples of Unfairness in the Worker’s Compensation Act

1.  Unfairness In “Safety” Penalties

A prime example of unfairness is the Act’s provisions relating to penalties applied to the person who causes an injury. Let’s compare the penalties the Act puts on unsafe employees to the penalties it puts on unsafe employers. This is a quote from the current Worker’s Compensation act, section 287.120:

4.  Where the injury is caused by the failure of the employer to comply with any statute in this state or any lawful order of the division or the commission, the compensation and death benefit provided for under this chapter shall be increased fifteen percent

5.  Where the injury is caused by the failure of the employee to use safety devices where provided by the employer, or from the employee’s failure to obey any reasonable rule adopted by the employer for the safety of employees, the compen­sa­tion and death benefit provided for herein shall be reduced at least twenty-five but not more than fifty percent; provided, that it is shown that the employee had actual knowledge of the rule so adopted by the employer; and provided, further, that the employer had, prior to the injury, made a reasonable effort to cause his or her employees to use the safety device or devices and to obey or follow the rule so adopted for the safety of the employees.

So where an employer does something wrong, there is no penalty unless it’s actually a violation of a specific law or a lawful order. No matter how absurd and unreasonable their conduct, the employer pays no penalty unless it’s a violation of law. Think about that for a minute. How many laws actually apply to your workplace? In most workplaces, very few laws apply to govern how things must be done.  (And lobbyists have worked on reducing those, too.)  This language makes it almost impossible for an employee to get any penalty applied to an employer no matter how outrageous the employer’s conduct.

On the other hand, when an employee does something wrong, it’s held against them, regardless of whether or not it’s a violation of law. The penalty is assessed against the employee in either one of these situations:

(i) the employee fails to use a safety device (regardless of whether or not the safety device was required by law); or

(ii) The employee fails to follow “any reasonable rule” adopted by the employer for purposes of safety.

The second provision is an intentionally broad and vague catchall, frequently used by employers and insurance companies to withhold benefits from workers.  It’s the exact opposite of the kind of severe, limiting language applied to employers in the paragraph just above it.

As these quotes make clear, the Act doesn’t even pretend to apply penalties evenhandedly to the employer and the employee, and instead uses language that is far more favorable to the employer. As a result, the almost all of the penalties applied by the Division of Workers Compensation are penalties applied to employees, not to employers.

But the biggest difference between these provisions is the amount of the penalty.  In the rare case where a penalty is applied to an employer,  the penalty is just 15% of the benefits payable. But the far more frequently applied penalty on the employee starts at a minimum mandatory 25%, going all the way up to 50% of the benefits payable. The legislature isn’t even pretending to make these rules seem evenhanded or impartial.

It should also be noted that in every case I’ve seen where an insurance company claimed that the employee violated the safety rule (no matter how absurd that claim), the carrier always (i) refused to wait for a judge to decide whether a penalty should be applied, and instead unilaterally withheld benefits from the injured worker and (ii) applied the maximum 50% penalty.  I have never seen an insurance company claim a safety violation by the employee and not do both of these two things.

2.  Unfairness in Intoxication Penalties

Another example of severe unfairness in the Worker’s Compensation Act deals with intoxication. Under the Act, If the employee is intoxicated and that intoxication actually caused his own injury, then all benefits are forfeited, with a 100% penalty on the employee (Section 287.120.6(2)). That’s harsh, but perhaps understandable and maybe justified.

On the other hand, in a situation where a drug test on the injured employee shows extremely minute, trace amounts of drugs in violation of an employer’s policy, and everyone agrees that the employee was not intoxicated at the time of injury, under Missouri law there is still a 50% penalty on the employee, no matter how serious the injury. (Section 287.120.6(1)).  Again, that penalty applies to all benefits, including paying only 50% of the medical bills which were not in any way related to or caused by earlier drug use.

While it’s understandable to want to penalize workers for violating company policy, it’s difficult to understand why any penalty should be applied to an injury which is completely unrelated to that policy violation.

When a worker breaks an ankle because somebody else wasn’t paying attention and drove a forklift over his foot at work, do we as a society really want to reduce all of the victim’s benefits by 50% because a blood test revealed that he had smoked a joint 3 weeks earlier?  That seems completely unjustified and outrageous.  Imposing a mandatory 50% penalty for an injury which is completely unrelated to the safety violation is absurd.

This scheme of penalizing employees for conduct which is completely unrelated to their injury makes absolutely no sense at all, unless you taken into consideration the real goal: reducing payments to injured employees, by any means necessary.

Those sections quoted above deal with drug use by the injured employee. But what about the situation where the company policy was violated not by the injured employee, but rather by a co-worker?  What happens under Missouri law when an intoxicated co-worker injures the claimant?

Suppose an employee repeatedly complains that a co-worker is intoxicated at work, and the employer knows all about it yet does nothing?  If the statutory goal is to deter intoxication and drug use, then logically penalties should be applied against the employer to give it an incentive to assure its workers are drug and alcohol-free.  But that’s not the law.  In Missouri’s, there is absolutely no penalty applied to the employer in that situation. They simply get away scot-free.  There is not even an attempt at consistency or equal treatment of both employers and employees.

3.  Eliminating And Limiting Claims By “Strict Construction”

In 2005, the Missouri Legislature modified the Worker’s Compensation Act in many different ways, all in an effort to cut down on how much injured workers would get paid, or eliminating claims completely.  Missouri’s benefits levels were already very low compared to most other states, but the Legislature (or more accurately the lobbyists for the Missouri Chamber of Commerce) wanted to reduce them further.

One change was to modify the Worker’s Compensation Act by saying that the whole Act should be “strictly” construed. This was the exact opposite of what the law had said all along.  For decades, Missouri’s law said that the Act should be “liberally construed with a view to the public welfare.” Section 287.800. Courts had interpreted that language to essentially mean that if a decision could go either way, the Act was construed in favor of providing benefits to the injured worker.  By changing the standard, the legislature made it harder across the board for employees to recover, which was their intention.

4. “Prevailing Factor”

Another change the Legislature made in 2005 was to say that employees could get no benefits under the Act unless the work injury was the “prevailing factor.” That amendment also modified long-standing Missouri law, to the great detriment of employees. Up until that time, the Act said that if a work injury was a “contributing factor” in causing a need for medical treatment, medical treatment and benefits must be provided to the employee. The 2005 amendment changed that, specifying the treatment and benefits only were to be provided to the employee if the work injury was the prevailing factor, and giving a severe definition to what “the prevailing factor” means:

An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. “The prevailing factor” is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Section 287.020.3

This language change also severely curtailed claims.  Now, there’s no recovery in worker’s composition unless the work injury was the primary factor in causing both the medical condition and disability.

5.  Insurance Companies Never Have To Pay Interest To The Employee In Workers Compensation Claims, No Matter How Long The Company Drags Things Out, Giving Them A Strong Incentive To Do Just That

“Prejudgment interest” is interest which is given to a claimant to compensate them for the amount of time between the date of the incident giving rise to the claim and the date the claim is finally adjudicated.

There is absolutely no mechanism in the Missouri Worker’s Compensation Act for an injured employee to ever get prejudgment interest on the amount of their claim.  This severely penalizes employees with worker’s compensation claims.

In other words, no matter how long an insurance company or an employer drags things out and delays proceedings, they get to keep all of the interest that they earn on the money they will eventually pay to the injured worker.  This system actually encourages and rewards insurance companies and employers to deny, delay and deny claims no matter how meritorious, all to the severe detriment of Missouri employees.

Now compare that to cases and claims litigated in Missouri’s court system instead of the Division of Worker’s Compensation.

When two businesses have a contract dispute resulting in a court judgment in Missouri, courts here are required to automatically add pre-judgment interest to the verdict amount.  Unless the contract specifies otherwise, the court is required to use the very favorable interest rate of 9% per year to the verdict amount, from the date of the breach of contract all the way through the end of the trial. See Section 408.040.

On the other hand, when an injury victim files a lawsuit in court, their treatment is far less favorable. Under Missouri law the court only adds interest to the verdict amount if both (i) that person did all sorts of technical things before trial (including sending the other side all kinds of evidence, including stating a dollar amount that they’re willing to settle for), and (ii) the final verdict is more than the injured person offered to settle for before trial. To add insult to injury, on top of all of these procedural hurdles, even though businesses get 9% on their contract verdicts, Missouri law discriminates against court injury claims by specifying that the interest rate is a far less-favorable floating rate, which is currently only 5.25% per year. Section 408.040.


Even If The Substitute Remedy Put In Place By The Worker’s Compensation Act Was Sufficient At One Time, It No Longer Is

The cumulative effects of this repeated erosion of employees rights under the Worker’s Compensation act is that it is now glaringly  obvious  that the substitute remedy created by that Act is not a sufficient replacement for the constitutional rights that Act took away.  While that substitution was never sufficient, appropriate or legitimate, is now even more patently inadequate.

Missouri officials should acknowledge the illegitimacy and insufficiency of this Act and at a minimum eliminate all of the anti-employee amendments that have been inserted throughout the decades, or more appropriately simply scrap the entire Act, either judicially or legislatively.  That would not doubt be severely disruptive, but that is less onerous than continuing this charade of pretending that the Act is fair to both sides, to the great detriment of thousands of injured workers who are being unfairly and unconstitutionally treated.

Forbes Publishes Article Seeking to End “Tort Reform”

Forbes Magazine is a bastion of right-wing, pro-business thinking.  I was therefore very happily surprised to recently find on their website an article acknowledging that the whole notion of “tort reform” is nothing more than big businesses “hoodwinking” legislatures into giving changing the rules in their favor, to fix a supposedly that never really even existed. That’s right: “hoodwinked” – their term, not mine.

As of March 9, 2015, the article can be read in its entirety here.  It’s entitled “On Tort Reform, It’s Time to Declare Victory and Withdraw” and is written by an author who’s been covering medical malpractice lawsuits for 25 years. The introduction to the article sums it up nicely.   Here are the first few paragraphs:

“The greatest trick the Devil ever pulled was convincing the world he didn’t exist.”

Verbal (Kevin Spacey) in The Usual Suspects

“The second greatest trick may be the insurance industry’s success in getting more than half the states to implement “tort reform.” That achievement was based on the promise that restricting victims’ ability to bring medical malpractice suits would improve healthcare and reduce its cost. Those myths have now been completely dispelled.

“The last bubble to burst was that because doctors are fearful of getting sued, they practice “defensive medicine,” prescribing unnecessary and costly tests and procedures. That myth was dispatched by the recent publication of a major study in the New England Journal of Medicine. A team of five doctors and public health experts found that tort reform measures passed in three states – specifically designed to insulate emergency room doctors from lawsuits — did nothing to reduce the number of expensive tests and procedures those ER doctors prescribed.

“This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;” that imposing caps on the damages victims could receive would reign in “out of control” juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists “fleeing the profession.”

“None of these promised benefits became reality. That’s because the alleged problems were themselves non-existent.”

The article goes on to state that one of the unintended consequences of the whole tort reform notion is that it has slowed down progress in patient safety initiatives,  which are largely driven by doctors’ healthy fear of jury verdicts:

“Sadly, the tort reformer’s success has had one unintended consequence that hurts everyone: they have slowed down progress in patient safety initiatives. It is well documented that major reforms in anesthesiology in the 1980’s were the direct result of anesthesiologists’ frustration with many large malpractice verdicts against the specialty – and the attendant negative publicity. In response, anesthesiologists revamped their procedures, established mandatory monitoring, improved training, limited the number of hours anesthesiologists could work without rest, redesigned machines and outfitted others with safety devices. Within 10 years, the mortality rate from anesthesia dropped from 1 in 6000 administrations to 1 in 200,000. And anesthesiologists’ malpractice insurance rates fell to among the lowest of any specialty. Since the success of the tort reformers, other specialties have felt less pressure to undertake similar self-reflective reforms.”

The article then concludes:

“It is time for legislators to recognize that they were hoodwinked, dismantle the so-called reforms, and begin to look for real solutions to make patients safer.”

I completely agree. The most efficient  way to make  everyone in our society safer ( patients, pedestrians, vehicle drivers, airline passengers,  etc.)  is to hold fully accountable  every person who  causes injury.   Shielding doctors  from the consequences of their actions doesn’t promote safety –  it encourages carelessness.  The most efficient way to protect our citizens is to  cancel all so-called “tort reform” laws.

Allowing Companies To Keep Claims Against Them Secret Places The Public In Danger, And It’s Contrary To The Purpose Of The Jury System

Federal Judge Releases Previously Secret Documents Exposing Defective Highway Guardrails, Allowing Improved Public Safety By Holding Manufacturer Accountable

At its core, the very purpose of the jury system  is to have a sampling of the community act in the community’s interest in deciding cases.  The members of the jury are,  very literally, the conscience of the community.  The jurors decide what conduct  will and will not be permitted in that community.

Companies that are sued for wrongdoing frequently try to hide their bad actions  by claiming that lawsuit documents should be kept secret.  They frequently  try to obtain secrecy by  stamping  almost every page that they’re forced to turn over to the other side as containing “trade secrets”,  even  though  the documents really don’t contain any trade secrets.  They do this because they know that this is  their best chance to keep the documents secret.

We’re happy to report that in a major case involving successful claims against the manufacturer of dangerous highway guardrails, a federal judge has ordered that court records in the case be made open to the public. In Harman v. Trinity Industries Inc. and Trinity Highway Products LLC, Judge Rodney Gilstrap refused Trinity’s request to keep confidential various documents that the company claimed contained trade secrets. Judge Gilstrap disagreed, saying that allowing  the company’s defense attorney to decide which documents were kept  secret or not,  as Trinity’s defense attorney in this case did, “would undermine public confidence in the judicial system—a confidence that cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court’s decision sealed from public view.”

Allowing corporations to keep lawsuit documents secret puts everyone our country in real physical danger, because there will be no public hue and cry to fix dangerous products if the public never finds out about them.

We applaud Judge Gilstrap for having the courage to do this. All too often, big companies get away with it, hiding behind completely fictitious claims of trade secrets.  United States Supreme Court Justice Louis Brandeis said it best when he said:

“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants.”

There is a real safety danger to everyone in the public when corporations are allowed to keep secret the claims that are made against them.  We completely agree the trade secrets should be protected so that competitors can’t steal them.  But the vast majority of the time, companies seek secrecy for their documents not because they want to hide things from competitors, but because they want to hide things from the public.  The facts they try to hide frequently include such things as how dangerous their products can be,  how many people their products have killed or maimed, how inexpensive and simple it would be to fix their design, when they first knew about the dangers, and how many times they’ve been sued by other innocent victims.

Classic examples of this include car companies refusing to recall their products to fix defects.  GM’s massive ignition switch recalls last year only happened because a tenacious trial lawyer sued them and exposed the fact that GM knew all along that its ignition switches could accidentally turn off, disabling air bags, power steering and power brakes at the very moment the driver needed those features the most, resulting in many fatalities and injuries.

False claims of trade secrets are commonplace, having been made by companies as far ranging as manufacturers of guns that fire even when their triggers aren’t pulled to manufacturers of cars that accelerate when their gas pedals aren’t depressed.

Public Justice, a non-profit public interest project, explained in its blog here why this decision is so important and what this case is about.  Public Justice said:

That’s why the victory for public access is so important in this case. A major highway guardrail manufacturer, Trinity, will not be able to hide the fact that it kept its changed guardrail design from the federal government and that that guardrail design is unsafe. The victory also means that the public has access to facts that will be critical for making the case that the federal government should withdraw its approval of these guardrails. And these documents are also major ammunition for states seeking to phase out and remove these lethal guardrails from our highways.

Trinity was sued for defrauding the federal government by changing the design of its guardrail end terminals, not conducting appropriate crash tests on the new design, and not telling the federal government about the changes—meaning that the guardrails remained on the Federal Highway Administration’s list of approved guardrails. A jury found that Trinity defrauded the government to the tune of $175 million.

Because of the design change, when the terminal is hit by a car, instead of absorbing the energy of the crash and slowing the vehicle, the guardrail jams and turns into a potentially lethal spear. Drivers and their passengers have been decapitated, their limbs have been severed, and they have been stabbed by these guardrails. A study by our client The Safety Institute found that the redesigned Trinity guardrail was 2.86 to 3.95 times more likely to be involved in a lethal accident and 1.36 to 1.95 times more likely to be involved in an accident with serious injury than Trinity’s older design.

In the case against Trinity, huge swaths of court records—including crash test documents—were filed under seal. On behalf of The Safety Institute and the Center for Auto Safety, we sought to intervene to unseal the records. Although our motion to intervene was denied, our efforts to unseal the records helped to convince the court to do the right thing.

It’s Time to Reform Tort Reform

The article shown below is from Houstonia Magazine, and as of February 17, 2015 can be found here.   It involves a heartbreaking situation in which a young man died as a result of clearly deficient medical care.   But because Texas law was amended in the name of “tort reform,” the doctor who was responsible was immune from accountability,   and a jury never got to hear the case.

Stephen DiLeo, the father of the 16-year-old boy, is politically conservative and had been in favor of “tort reform” laws, but was shocked to realize that his efforts to hold this doctor accountable were blocked by the very type of laws that he had been in favor of. Texas had passed Proposition 12 several years earlier, limiting certain types of recoveries and medical negligence cases to $100,000 and $250,000, depending on who was being sued.

This article clearly demonstrates many of the significant problems with laws capping or limiting lawsuit claims.

First, and most importantly, if doctors never have to worry about being held responsible, they have no motive or incentive to do a good job. That places everyone in our communities at risk, because if doctors aren’t held accountable for their actions,  we are all at risk of getting substandard medical care, with potentially devastating consequences.

Second, these limits apply to every lawsuit, not just ones that are frivolous. These laws don’t make any distinction between meritorious or non-meritorious claims. They’re a “one-size-fits-all” answer to problems involving many different types of issues.

Third, the promises made to get people to pass these types of propositions never materialized. The proponents of Proposition 12 promised Texans that medical malpractice premiums would go down and that as a result the cost of treatment would go down. Well, medical malpractice premiums did go down, but none of that got passed on to patients, as the cost of treatment in Texas went up significantly anyway. They also promised that Texas would have more doctors if these laws protecting doctors got passed. Statistics show, however, that in the year since this was passed, the number of physicians in Texas has increased as the same rate as states that have not eliminated their citizens’ rights to have a jury hear and decide their cases.

Fourth, the Constitution promises a right to a jury trial, and these laws  take away that right. After all, what good is having a jury trial if the jury’s decision is meaningless.   The way these laws work is that a jury would hear  all of the evidence and then decide whether the claim has merit and if it does they would also decide on a fair dollar amount in damages.    The judge then thanks the jury and sends them home.   The judge then  completely disregards  the jury’s decision if it’s above the predetermined “cap”  amount,  and reduces the award to  the maximum the law allows.   This system deprives the injured person of had the right to a jury trial because the scheme completely ignores the jury’s decision.

If the family had lived in Texas in 2003, when the state was enacting its reforms, Stephen DiLeo would probably have supported Prop 12 as a good common-sense measure. Needless to say, the self-proclaimed “Dittohead/Limbaugh conservative” now finds himself at odds with much of the Republican punditocracy on this issue. “They hold Texas and Governor Perry up as having the perfect solution to frivolous lawsuits, and are as ignorant and misinformed on the matter as I was,” he says.

“I find that so many times, where folks are rock-ribbed Republicans…they voted for Proposition 12 at the time, thinking that it was as advertised, that it was going to crack down on frivolous lawsuits,” says Winslow. “And then they come to find out, ‘My God, they think that my case is frivolous. I lost my son, my daughter, my wife, my parent, and their lives were frivolous.’ And their lives are devastated.”


Here’s the Houstonia article, in full:


Is It Time to Reform Tort Reform?

Is It Time to reform Tort Reform?

Tort Reform made sense to lots of people at the time, Stephen DiLeo included—that is, until a doctor removed his son’s brain tumor.

In the summer of 2008, Stephen DiLeo, his wife Cassy, and the couple’s two sons, Michael and Jonathan, went on a long-awaited vacation together, to the white sands and crystalline waters of Pensacola.

It had been a stressful few years for the Covington, Louisiana family. While being evacuated from an assisted-living home in the aftermath of Hurricane Katrina in 2005, Stephen’s mother had died of a heart attack. Shortly thereafter, the DiLeos had taken in his ailing father, a wheelchair-bound man whose caregiving demands were almost beyond the energies of Stephen and Cassy, even though both were former ICU nurses. Nevertheless, the 89-year-old lived with the DiLeos for three difficult years, until his death in July 2008, by which point it seemed like the family had more than earned a few days of rest and relaxation on Florida’s panhandle.

On August 4, the day before Stephen and Cassy’s 21st wedding anniversary, 16-year-old Jonathan suddenly began projectile-vomiting, and the family rushed him to a Pensacola ER. There had been no precipitating event, the DiLeos told doctors. In fact, the boy had had no unusual symptoms of late, other than a complaint of double vision, and that had been addressed by an optometrist, who prescribed glasses. Concerned, the Florida doctors suggested a CT scan of Jonathan’s head. It revealed a tumor the size of a ping-pong ball in the pineal region of the boy’s brain.

“We literally almost passed out,” Stephen remembers. The stunned family drove home through the night, stopping at Children’s Hospital in New Orleans, where the diagnosis was confirmed. Cassy likened it to being hit by a train. She quit her job that very day.

Neurosurgeons at Children’s Hospital told the DiLeos that while young Jon’s tumor was inoperable, chemotherapy might be effective. Indeed, 12 weeks into it, the mass had shrunk by 50 percent. Radiation would be needed next. After researching the procedures available, the DiLeos brought their son to Texas, and a hospital the family is not allowed to name.

Here, they met a neurosurgeon (whom they also cannot name) with a very different view of Jon’s condition. His belief, contrary to that of the Louisiana doctors, was that the tumor was indeed operable, especially now that it was smaller in size. In fact, he felt he could “potentially cure” the boy, Stephen remembers. There were risks, of course. Fluid might build up in Jon’s brain after the operation, for one. The surgeon assured the DiLeos that a shunt could be installed, however, if and when fluid build-up became a problem.

According to the DiLeos, the neurosurgeon expressed great confidence in his ability to remove the tumor and cure Jonathan, so the family consented to the surgery. A few days later the tumor was removed and a temporary drain for fluid placed. Four days after the operation, it appeared that fluid was no longer building up in the boy’s head, and so the temporary drain was removed, whereupon he was able to comprehend and respond to questions. Nineteen days after surgery, however, on the morning of December 1, there were ominous signs that fluid had again begun to build up in Jon’s brain. The teen had started having headaches and seizures—both signs of increased intracranial pressure—and his scalp had even begun to stretch visibly.

Nevertheless, neither a shunt nor a second temporary drain was ever installed, according to medical records. After a CT scan revealed an alarming increase in the boy’s intracranial fluid level, a radiation oncologist allegedly phoned Jon’s surgeon and informed him of this development, but the surgeon, apparently unfazed, took no action.

Around 1 p.m., Jon began having unbearable headaches that were unrelieved by medication. He no longer knew where he was, and the left side of his face began twitching. A series of seizures followed, and the boy became unresponsive, at which point he was transferred to the ICU. Jon’s surgeon did not come to see his patient there until around 5 p.m., and then only for a couple of minutes, according to the DiLeos.

Jon’s condition began to further deteriorate throughout the evening. The hospital placed emergency calls to his surgeon, but these went unanswered. Finally, around 11 p.m., the doctor did return to the hospital, and after seeing the results of a second CT scan, became convinced that the boy needed immediate surgery to install a shunt. At some point, the DiLeos remember asking him if he’d been in surgery during the five hours they’d tried to reach him that night. No, he said. He’d been at dinner with his family.

The surgeon began to operate on Jon, but his efforts came too late. At 3:06 a.m. on December 2, Jon was declared brain-dead. Two days later, he was taken off life-support.

“The agony of that, of watching your son suffer and die in full view of hospital staff…is unbelievable,” recalls Cassy. “The rest of the staff was jumping around trying to help, but without the response of the neurosurgeon, who was the only person who could operate and relieve the pressure on his head.” Almost immediately, Cassy began having nightmares and flashbacks, gallbladder problems, and gastrointestinal bleeding. Her periods began coming every two weeks and she developed facial tics. “Steve also developed a range of physical symptoms, especially headaches,” she says, before quickly adding that what she and her husband suffered was nothing compared to what Jon went through in his final hours.

Eventually, perhaps inevitably, the DiLeos began asking questions. Did their son’s tumor need to be removed, or might it have been shrunk further with radiation? Why had the surgeon neglected to install the shunt, or even a simple temporary drain? Had he truly believed at the outset that this would be “a beautiful procedure,” or had he instead chanced a risky surgery without giving the DiLeos all the facts about what could go wrong? And how could he have enjoyed a dinner with his family, knowing that a patient of his was writhing in agony?

And there was something else, too. During Jon’s treatment, his parents had taken to reading the neurosurgeon’s progress notes (as former nurses, Cassy says, “we are pretty familiar with charts”). Over and over, they read of the doctor’s plan to install a shunt if Jon exhibited certain symptoms, many of which he had certainly experienced during the last week of his life. But the doctor had neglected to follow his own plan. After their son’s death, the DiLeos tried to reread the surgeon’s notes in Jon’s chart, discovering to their astonishment that all of the notes prior to December 1—the day before Jon’s death—were gone.

There were too many mistakes, too much evidence of negligence and/or incompetence on the part of neurosurgeon, and too much suspicion that either he or someone at the hospital had tried to cover this all up. And so, even as the DiLeos knew it would never bring their son back, they decided to sue the doctor for malpractice. It wasn’t money they sought but justice, and they were confident that in a court of law, justice would prevail.

And perhaps it would have—if Jon’s doctor had committed malpractice in a different state.

“The way our system should be working, and the way it was designed by our founders to work, was this: on a case-by-case basis, judges and citizens would sit and hear evidence, and then weigh it based on the law,” says N. Alex Winslow, the executive director of Texas Watch, an Austin-based bipartisan consumer advocacy group. “And then they would make a decision whether someone was at fault or not, and if so, how much.”

Thus did malpractice cases work their way through Texas courts for the better part of 160 years, from statehood all the way up until the early 2000s, when supporters of tort reform began portraying the state as a “lawsuit mecca” and “judicial hellhole,” wherein “jackpot justice” reigned. Thanks to frivolous lawsuits and the lack of caps on punitive damages, so went the argument, high medical malpractice insurance premiums were forcing doctors to either leave the state or retire early. Hence, the shortage of physicians, particularly in rural areas. And among those who continued to practice, said supporters of tort reform, a fear of lawsuits was driving them to order multitudes of tests, many expensive and unnecessary, which meant higher healthcare costs for everyone.

Clearly it was time to rein in the lawyers, and in this cause the insurance companies joined forces with Texans for Lawsuit Reform, a lobbying group founded by four Houstonians: construction magnate Leo Linbeck Jr., homebuilder Richard Weekley, Richard Trabulsi, a corporate attorney (and now owner of the Richard’s liquor store chain), and Hugh Rice Kelly, Reliant Energy’s former general counsel. In 2003, in an astonishing series of victories, the TLR helped persuade the Texas Legislature to pass a bill capping non-economic damages for malpractice victims at $250,000, and $100,000 at certain public hospitals. Restrictions were also placed on contingency fees (in which lawyers are paid a percentage of what their client wins in court, if anything, rather than collect any money up front), and lawyers were prohibited from being reimbursed for expenses until their clients won—if they won. Tort reform advocates got almost everything they wanted from the legislature, and what they couldn’t get from lawmakers they got from the voters.

“Backers of tort reform knew that the state constitution—not to mention the federal constitution—was very clear that Texans have a right to…go to court and hold someone accountable by presenting evidence to a jury of your peers,” says Winslow. And so, that September, an amendment to the Texas Constitution known as Proposition 12 was put on the ballot. It was voted down in every major metropolitan area in the state, but the rural counties—convinced they would lose what few doctors they still had—voted in favor. By a razor-thin 1.2 percent margin, Prop 12 became law.

“Never have so many who needed so little gained so much,” said Craig Eiland, a former trial attorney turned Democratic state representative for Galveston, two years after Prop 12’s passage.

“When we look back, we know that they knew what they were doing was unconstitutional. That was why they had to amend the constitution in order to do it,” notes Alex Winslow with a bitter laugh.

Jonathan DiLeo

Jonathan DiLeo, Courtesy of the DiLeo Family

As Louisianans, the DiLeos weren’t aware of the sweeping reforms in Texas’s civil justice system. All they knew is what they heard from the attorney they’d hired, who had spent 14 years as a neurosurgeon prior to her law career. It was clear to their lawyer, based on a review of the medical records, that Jon’s surgeon had been negligent. As she wrote in her blistering report, “While Jonathan was dying in front of his family, [his neurosurgeon] went home to have dinner with his family for five hours, as Jonathan irreversibly deteriorated. Jonathan was still awake and speaking at 5 p.m. Had [the surgeon] acted at or before this time, Jonathan’s life would have been saved. The only person involved in Jon’s care who could have saved his life decided to have dinner instead.” The DiLeos’ hired expert further wrote that in her professional opinion, the boy’s death was the direct result of the 10-hour delay between the time of Jon’s first CT scan on December 1 and the time the surgeon operated on him early the next morning, much of which was wasted waiting for a second CT scan she believed had been unnecessary.

The DiLeos seemed to be on their way to building a strong case against the doctor for negligence, but they had no idea what obstacles the Texas legal system had put in their path. For starters, Jon had been operated on in a public hospital, of which there are 132 in Texas and six in the Houston area, including some of the largest and best-known. That was important because in Texas, employees of state-run hospitals enjoy the same “sovereign immunity” as police officers, firemen, and other government workers, which is to say that they are almost impossible to sue.

“Under Section 101.106 of the Texas Civil Practice and Remedies Code, people who are hurt by state employees effectively cannot sue individual actors, so doctors are off the hook, regardless of what they do,” says Houston personal injury attorney Allan Brain, who was not involved in the DiLeo case. Immunity can be waived in certain instances, but only if the plaintiff proves negligence, something else that Prop 12 made more difficult. “In medical cases, [negligence] was formerly liberally construed to include misuse of a medical record,” says Brain. No longer. These days, if a doctor in Texas misreads a chart or fails to give you a dose of medicine or perform an operation that might have saved your life, it’s considered not negligence but an error of medical judgment. What’s the difference? You can’t sue a doctor for an error of medical judgment.

Brain remembers a case some years ago in which a physician at a state-run facility misread the results of a pathology test. The doctor read as negative what was instead an abnormal test that suggested cancer, and a treatable one, at least in its early stages. By the time the test was read correctly, however, the disease had become invasive.

“Today, that case would be immune from liability because the failure to follow up would not be a misuse of tangible physical property,” Brain says. “It would be a failure of medical judgment,” and thus immune to litigation.

At any point in the process, there is the option of mediation. Hospitals facing potential suits frequently make offers of settlements to wronged patients, calculating that even an amount far smaller than the $250,000 cap will be enough to make the case go away. Furthermore, at certain public hospitals, damages can be capped at $100,000, and in at least some cases, patients and their loved ones are still responsible for medical bills. In other words, the mediation settlement amounts to something like a discount on botched care, and one that the families are prevented by a gag order from speaking about.

Given the anti-plaintiff provisions that the DiLeos faced, as well as the sovereign immunity granted the doctor, Jon DiLeo would never get his day in court, and the doctor who they believed was responsible for his death would get off scot-free.

“The injustice done to my son is unbearable,” Cassy DiLeo says. “And then to not be given a voice for your child….This is the first time in my life I’ve really felt oppressed.”

“It’s really devastating for the families, and I wish I could tell you that they were in a unique situation,” says Alex Winslow of the DiLeos. “We hear from people weekly if not daily who have been victimized by a medical error or negligence, whether it be in a government facility, a private facility, or a nursing home. It’s entirely all too common. And these people found out that there’s really no method to hold anyone accountable. It’s really devastating.”


More than a decade after it was passed, supporters are still calling Prop 12 an unqualified success. In an editorial published in the Austin American-Statesman last year, Brooke Rollins of the Texas Public Policy Foundation, a conservative think tank, claimed that tort reform had not only halted but reversed the exodus of Texas doctors. She predicted that by the end of 2013, Texas would have nearly 60,000 physicians, almost double the number it had had 10 years earlier, and termed it “no coincidence that since 2003 Texas has also distinguished itself as the national leader in job growth.” Tort reform, Rollins wrote, “is not the only reason for the Texas Miracle, but it is a big part of it.”

The American Medical Association isn’t nearly so sanguine about Rollins’s numbers. According to them, in 2002 there were 221 doctors per 100,000 Texans; in 2011, the last year for which statistics are available, there were 245, an 11 percent increase. Nationally, the mean number went from 288 to 322, and from 417 to 454 in New York. With regard to the latter, New York experienced roughly the same percentage increase in its numbers as Texas over the past decade, which is surprising, since the state already had more than one-and-a-half times as many doctors as us, and, even more surprising—at least to some—has no cap on malpractice damages.

What about the claim that tort reform would bring down health costs once doctors cut down on all those unnecessary tests and insurers lowered their malpractice premiums? Well, in the years following tort reform’s passage, malpractice premiums did decrease around 46 percent, but those savings have not been passed on to patients, according to a 2011 study by the consumer group Public Citizen. And as for the claim that Prop 12 would usher in an era of lower healthcare costs, well, even tort reform’s biggest backers are distancing themselves from that one.

After a 2012 study demonstrated that Prop 12 had done nothing to reduce health expenditures, Jon Opelt, executive director of the Texas Alliance for Patient Access, denied that cost-cutting had ever been a stated aim. “We did not and we have not led lawmakers and voters astray,” said a man whose organization had donated $1.2 million to the Yes on 12 campaign in 2003, speaking to the Austin American-Statesman. Inconveniently for Opelt, the paper unearthed two campaign flyers from 2003, one of which promised “lower costs and more security in our health care system,” and another in which Governor Rick Perry claimed that Texans could “help make healthcare more affordable and accessible” by voting yes. (Opelt maintains that TAPA had nothing to do with the content of Yes on 12’s flyers.)

Ironically, says Texas Watch’s Alex Winslow, despite all the havoc Prop 12 has wreaked, the measure has accomplished precious few of its stated aims. “The cost of healthcare in Texas has gone up faster than the national average,” he says, “we’re ranked dead last in terms of quality of care according to the federal government, and access to doctors in underserved communities is still a huge problem.”

Still, Prop 12 has certainly accomplished one of its stated aims: there’s been a big decrease in the number of medical malpractice suits filed. A search of Harris County District Court records reveals that in 2002, the last full year before tort reform, 573 medical malpractice suits were filed in Houston. In 2013, there were 213. Winslow believes that a significant number of patients with meritorious cases simply don’t file them anymore.

“What the legislature and the Texas Supreme Court have done is to arbitrarily limit lawsuits,” he says. “It’s that arbitrariness that is so pernicious.” Reformers proudly trumpet the fact that the courts have succeeded in preventing cases without merit from going forward, but they’ve done so at the cost of cases with merit. “The reality is, before we started limiting meritorious cases, the cases that did not have merit were dealt with as they should be. They were thrown out.”

The only thing Prop 12 has really done, according to Winslow and others, is make it harder for the injured to hold wrongdoers accountable. “People like the DiLeos—and many, many others—have no recourse through the courts,” he says.

Governor Rick Perry, left, shakes hands with Mike Gallager of Houston after signing a tort reform bill at the Capitol in Austin, Texas on Monday, May 30, 2011.

Governor Rick Perry, left, shakes hands with Mike Gallager of Houston after signing a tort reform bill at the Capitol in Austin, Texas on Monday, May 30, 2011.

In December 2011, Dr. Christopher Duntsch was in the middle of performing surgery on a patient at the Baylor Regional Medical Center of Plano. The surgery was going badly—so badly that another surgeon also present in the operating room allegedly tried to pull the surgical instruments from Duntsch’s hand. The next month, another Duntsch surgery on another patient followed the same trajectory, arousing the ire of yet another surgeon present, who later reported that he’d been shocked by Duntsch’s amateurish technique. Subsequent lawsuits were filed by everyone from the surgeon’s childhood best friend, who wound up a quadriplegic after a surgery Duntsch had performed, allegedly following a night spent snorting cocaine, to the family of a Garland teacher who’d bled to death on the operating table after Duntsch reportedly sliced open her vertebral artery.

Baylor Plano, which is unaffiliated with Houston’s Baylor College of Medicine, quietly dismissed Duntsch in April 2012, though not before giving the surgeon a letter stating that the hospital had never taken any disciplinary action against him, even though it had once suspended him for 30 days. Duntsch used that letter to acquire positions at two more Dallas hospitals, where the botched surgeries continued. Before the Texas Medical Board finally stripped him of his medical license last December, Duntsch stood accused of being incompetent, addicted to drugs and/or alcohol, and a sociopath. One doctor even likened him to Hannibal Lecter in The Silence of the Lambs. 

Not surprisingly, several of Duntsch’s former patients have sued Baylor Plano in federal court, claiming that the hospital waited too long to act and concealed Duntsch’s wrongdoing, all in order to recoup the $600,000 salary advance they’d given him. But the suits have also challenged the constitutionality of Texas’s tort reform statutes, and that’s where things get interesting. Texas attorney general and gubernatorial candidate Greg Abbott—himself the recipient of a multimillion-dollar personal injury judgment after being hit by a falling tree limb while jogging in the 1980s—has intervened in the suits on Baylor Plano’s behalf. (Allan Brain believes that under current jurisprudence, Abbott’s own personal injury suit would have probably been thrown out on a summary judgment.)

Some have wondered about the timing of the $350,000 given to the Abbott campaign by former Houston Astros owner Drayton McLane, who is now the chairman of the board of the Baylor Scott & White hospital system, of which Baylor Plano is a member. McLane’s first installment, of $100,000, came the day after Duntsch’s license was suspended in June 2013; a second $100,000 contribution followed a week after a rash of lawsuits was filed against Baylor Plano. (McLane claims to have known nothing about the proceedings against Duntsch, and Abbott’s campaign says the donations had no bearing on his decision to intervene against the plaintiffs.)

In any event, the stakes are high in the case. Should the federal court ruling go against the plaintiffs, hospitals like Baylor Plano will no longer be responsible for their doctors’ actions. If the plaintiffs win, it could be the beginning of the end for tort reform. Furthermore, there are already a number of similar cases from various state courts percolating through the federal system right now, as Alex Winslow notes. Any one of them could one day lead to the overturning of Texas’s tort reform law on the grounds that it violates the Seventh Amendment’s guarantee of the right to trial by jury.

Some states have already overturned tort reform on their own. The supreme courts of both Georgia and Missouri have reversed laws passed by their legislatures (they had capped damages at $350,000). In each case, the court ruled that the caps were unconstitutional, robbing juries of their voices. Winslow does not expect the pro-business Supreme Court of Texas to follow suit, and if Greg Abbott is elected governor, there won’t be any winds of change blowing from the executive branch either. After all, roughly 20 percent of the donations to Abbott’s attorney general electoral campaigns came from tort reform supporters. (As for his gubernatorial opponent, Wendy Davis, prominent Houston trial attorney Steve Mostyn, for one, has donated millions to her campaign.)

Sleepy and lush, Covington is a picture-perfect town on the north shore of Lake Pontchartrain, just across the causeway from the hurly-burly of New Orleans. Tidy Victorian bungalows stand among majestic Spanish moss–draped live oaks on the town’s backstreets, which radiate outward from a spick-and-span, compact downtown. There, the streets are lined with boutiques, wine bars, nondenominational churches, and art galleries, all peeking out from behind 19th-century Louisiana storefronts, complete with iron railings and painted storm shutters. Buster’s is there too, a laid-back place where Cassy and Stephen DiLeo—over gumbo, seafood po-boys, and iced tea—reminisce about a life that held so much promise.

They speak of a boy with a 4.2 GPA who scored high on the ACT during his sophomore year of high school, who planned to run for class president during the junior year he never got to have. They speak of a boy who not only reined in bullies, but somehow convinced them to become friends with their former targets, and who was a huge help during his ailing grandfather’s last few years. Stephen recalls that in the early weeks of the last summer of his life, when not perusing the first trickle of what was sure to have been a deluge of college brochures sent his way, Jon could often be found holed up in his bedroom with a Rosetta Stone program, wrestling with the mysteries of ancient Greek. “Jon wanted to learn Greek, Hebrew, and Latin,” says Stephen. “On his own. In the summer. I was reading Superman comic books when I was his age.”

But ancient Greek?

“He wanted to read the New Testament in Greek,” his father, still astonished, remembers. Always a devoutly Christian family, the DiLeos fondly recall a 2005 mission trip they took with their church to Zimbabwe. Jon’s anticipation was so palpable, say his parents, you would have never guessed they were travelling to the world’s third-poorest country.

“He was so excited about life,” Stephen recalls. “As a matter of fact, one of his friends stated after his death that the guy who loved life the most died the earliest.”

If the family had lived in Texas in 2003, when the state was enacting its reforms, Stephen DiLeo would probably have supported Prop 12 as a good common-sense measure. Needless to say, the self-proclaimed “Dittohead / Limbaugh conservative” now finds himself at odds with much of the Republican punditocracy on this issue. “They hold Texas and Governor Perry up as having the perfect solution to frivolous lawsuits, and are as ignorant and misinformed on the matter as I was,” he says.

“I find that so many times, where folks are rock-ribbed Republicans…they voted for Proposition 12 at the time, thinking that it was as advertised, that it was going to crack down on frivolous lawsuits,” says Winslow. “And then they come to find out, ‘My God, they think that my case is frivolous. I lost my son, my daughter, my wife, my parent, and their lives were frivolous.’ And their lives are devastated.”

The $250,000 cap for non-economic damages measures a person by the size of his paycheck, many contend. An executive or doctor in mid-career can win millions more by suing for theoretical lost income, while those without incomes—retirees, stay-at-home parents, and kids like Jon—have no such option. (In very rare cases the $250,000 damages can be tripled, as when a patient’s suit involves a doctor and two hospitals.)

Of course, for the DiLeos, the point was not to win money but to hold a guilty surgeon accountable. “We just wanted a slap on his wrist,” says Stephen. “We just wanted something on his record.”

Their initial petition to the Texas Medical Board was denied. They appealed and lost. They appealed again and lost a second time, the board having concluded that Jon’s death “was related to factors outside [the doctor’s ] control.”

Meanwhile, Jon’s surgeon is still performing surgeries, in all likelihood, his patients and their families unaware of the pain and suffering he once visited upon another patient and family. Jon’s tragic death has in no way left a mark on the man’s reputation, which is not to say that Jon hasn’t made his mark in other ways.

On the DiLeos’ Zimbabwe trip, the boy saw firsthand the deprivation faced by Africa’s orphans during the brief, difficult, and painful existence that comes with living in a country with the shortest life expectancy on earth. At an orphanage, Jon saw children his age and younger struggling daily to keep a small garden alive by lugging heavy, back-breaking buckets of water from a distant well. Stephen says his son was “on fire” with a desire to help the poor children of Zimbabwe, and that that fire kept burning even after the DiLeos returned to Louisiana.

When he fell ill, Jon, like many other very sick children, was put in touch with the Make-A-Wish Foundation. In the end, he narrowed his wishes down to two: a tour of his hero C.S. Lewis’s London, or an irrigation system for the orphanage he had visited.

It was just a year after his death that water from the irrigation system began to slowly flow for the first time through 20 acres of farmland at the orphanage. And Jon was a wellspring of another kind too. A charity—Jonathan’s Impact—was established in his memory, and donations regularly generate $2,000 a month for Zimbabwean orphans, a huge sum in a country where the per-capita income is $50 a month.

Jon DiLeo’s life may have been deemed frivolous by the Texas courts, but the boy’s afterlife has been anything but.

Safety Rules Help Prevent Injuries – Visit MakeSafeHappen.com to Learn How To Protect Your Children

Nationwide Insurance Company has gotten a lot of people upset by airing a Super Bowl ad last night which dramatically addressed the death of a child. Nationwide insurance posted the ad to its YouTube account, and the ad can be viewed here.  The ad has a link to MakeSafeHappen.com, a website which gives helpful advice to parents on safety rules which will help them keep their children safe.

Many of the comments posted by YouTube viewers were very critical of the company. Some said things like:

“Poor taste. Remove this garbage. Your company cannot prevent accidents because accidents HAPPEN.”

“You cannot prevent an accident.”

But those comments miss the point of the ad. The text that appears on screen makes it very clear that the company is talking about accidents that can be prevented. The ad says:

The #1 cause of childhood deaths is preventable accidents.

On YouTube, the description Nationwide placed below the video window says:

The #1 cause of childhood deaths is preventable accidents. At Nationwide, we believe in protecting what matters most, your kids. Together we can #MakeSafeHappen. Learn more at http://makesafehappen.com.

While there sometimes are plain old “accidents,” most injuries would never have happened if people had been more cautious in the first place.  The vast majority of injuries and deaths happen because someone ignores a safety rule, and by the time the danger is seen, it’s too late.  For example, a driver falling asleep at the wheel crashes into another car. That’s clearly an accident – he didn’t mean to crash, and didn’t intend to hurt anyone. But the tired driver never should’ve gotten behind the wheel in the first place, so this was preventable.

A speeding driver is unable to avoid a crash because there isn’t enough time to stop once the pedestrian walks into the roadway. But the speeding driver would have had enough time to stop if they had been obeying the speed limit in the first place.

The truck driver crashes into the rear of the small car in front of him because there isn’t enough room to stop safely. But that trucker could’ve avoided the crash if he’d left more room in front of him and was following at a safe distance, especially because trucks need a lot more space to stop than a car driver does.

Most injuries are preventable. For that reason, we applaud MakeSafeHappen.com.  The website gives useful information on how parents can protect their children from accidents and injuries around the home. We urge all parents to go to that website to actively learn how to help make their children safe at home.

Federal Government Actually Announces It Is Not Going to Enforce Its Own Trucking Safety Rules, Increasing The Likelihood Of Traffic Deaths

Approximately 5,000 people per year are killed in tractor-trailer crashes in the United States.  One of the leading causes for these crashes is that the truck driver was just too tired to drive safely.

Tractor-trailer collisions are much more likely to cause serious injuries or death than crashes that only involve cars, for many reasons.  The massive size and weight of these vehicles alone makes them much more likely to kill people if they go out of control.

Most people don’t realize it, but driving a tractor-trailer is very different from driving a car. Truck drivers have far less ability to see around the vehicle than car drivers do, they need much longer stopping distances, and the truck driver has way less ability to control the vehicle in an emergency situation.   Because the risks of driving a tractor-trailer are so much higher, a safe truck driver must constantly be on the alert.

It’s difficult to maintain this required high level of alertness for very long periods of time.  It’s difficult for anyone to keep this level of attention for long periods of time. The Federal Motor Carrier Safety Administration (FMSCA) is a federal agency that regulates truck drivers and trucking companies in order to keep the public safe. This agency has strict rules in place which limit the number of hours a truck driver can drive. These rules, commonly called the “Hours of Service” rules, are extremely important to protect all of us from tractor-trailer drivers who are too tired to drive safely. For many years, these Hours of Service rules have done just that.

But now the FMSCA has announced that it has decided that it is not going to enforce some of its Hours of Service regulations between December 16, 2014 and September 30, 2015. They haven’t repealed the rules – they simply said that they decided that they’re not going to enforce them.

Unfortunately, the agency seems to have forgotten that the very reason it exists is to keep the public safe.   It’s right there in the name: Federal Motor Carrier SAFETY Administration.

There is absolutely no good reason for this.  Only the federal government could think that it makes sense to adopt safety rules  to protect us all and then publicly announce that  those rules are not going to be enforced. Not enforcing them puts the safety of every driver and passenger on the road at risk, including those truck drivers who drive safely. It is a statistical certainty that there will be an increase in traffic deaths because of this decision, and the FMCSA should immediately announced that it is going to enforce these rules, for the protection of us all.

If you were injured in a crash involving a truck, tractor-trailer or other large vehicle, an experienced injury attorney can help you. These crashes are not like regular car crashes, in part because it’s extremely important to get the truck drivers log books showing the hours he was driving.  Many crashes are caused by the truck driver’s violating the safety rules, including the hours of service rules.  The federal laws require  truck drivers to keep these records  of  the hours they drove, but also allow them to throw those records out after a certain period of time.  In order to preserve  this very important evidence, it’s best to hire an experienced tractor-trailer and truck crash attorney as soon as possible after the crash,  while the evidence still exists.

At Curran Law Firm, we can help you. Please call us at 417-823-7500 for a free consultation. We’re happy to discuss your situation with you, either over the phone or in person. For free information on what to do following a crash, click here.

Some Insurance Companies Are Secretly Reducing Insurance Coverage Amounts. Let’s Stop This Misleading Practice!

Some insurance companies have recently started inserting fine print in their motor vehicle insurance policies which severely cuts down on the amount of coverage the policy provides, even though the policy specifically states a higher dollar insurance limit on the first page.  This is an underhanded way of shortchanging the customer, and everybody should stay far away from any insurance company that does this.

Shelter Insurance Company is one company that has started doing this, and I suggest that anyone who is insured with Shelter immediately switch insurance companies, making sure to vocally tell Shelter exactly why you switched companies.

So how does this trick work? Here’s an example. John Smith buys a Shelter motor vehicle liability insurance for his car that says it provides liability insurance coverage up to $100,000 per person and $200,000 per accident. Missouri law only requires $25,000 in coverage, but Mr. Smith pays good money to Shelter to get more coverage than that. Missouri insurance laws require that Mr. Smith’s policy provide insurance coverage not only to him, but also to any person he loans his car to.  So if, for example, John loans his car to someone else (whether it’s his neighbor, or a co-worker, or his brother-in-law, etc.), Missouri law requires Shelter to provide that person with coverage under Mr. Smith’s policy.

But Shelter is now burying a provision in its policies that says that for those other people, those “permissive users” who Mr. Smith loans his car to, Shelter will not provide $100,000 in insurance coverage, but will drop the insurance level all the way down to Missouri’s minimum of $25,000 per person.  In other words, even though Shelter continues to charge Mr. Smith premiums based on the $100,000 policy limits, they are only going to provide $25,000 in coverage to the driver in this situation.

Insurance companies even have an innocent-sounding name for this deceptive tactic. They call it a “step-down provision.”  In case anybody’s interested in the details, here’s the actual language of the fine print that Shelter is putting in these policies to do this:


Some individuals who qualify as an insured, qualify only because they have been given permission or general consent to use the described auto covered by this policy. The financial responsibility laws of the state require that any person who operates an automobile in the state, be covered for a specific amount of liability insurance.

Those individuals, who are covered by this policy solely because they were given permission or general consent to use the described auto, will be covered only for the minimum limits of liability insurance coverage specified by the financial responsi­bi­li­ty law applicable to the accident, unless a specific coverage states otherwise.

Even though the permissive user limit for coverage will be established at that minimum limit, other qualified insureds will continue to be provided full policy limits, subject to any limitations or exclusions present.



Step-Down Limits Statement

For persons who become insureds solely because they have permission or general consent to use the described auto, this policy provides only the limits required by the financial responsibility law. For this state, those limits are $25,000 bodily injury for each person, $50,000 bodily injury for each accident, and $10,000 property damage for each accident. (The policy defines the bold terms.)


I urge everyone who reads this to please:

(i) switch insurance companies if your policy contains this type of language.  If you’re unsure, call your insurance company and ask them if there’s a provision like this in your policy.


(ii) complain now to the Missouri Department of Insurance about this deceptive tactic.  You can very simply and easily file a complaint online at this page: https://insurance.mo.gov/consumers/complaints/consumerComplaint.php

If you don’t want to   come up with your own wording about this deceptive practice, I suggest you simply copy and paste this:

I strongly urge the Missouri Department of Insurance to adopt rules forbidding insurance companies from putting so-called “step-down” provisions in their policies. These provisions mislead the insured into thinking that they and those they loan their cars to have a certain level of coverage when in fact these provisions deprive them of the amount of coverage they bought and paid for. While everyone should read their policy when they get it,   it’s unrealistic to think that the average customer will actually understand that their policy which has a $100,000 per person liability  limit on its declaration page  actually only provides $25,000 in coverage to a permissive user.   Insurance companies are getting away with providing less coverage than the declarations pages state, and it’s not fair. It shortchanges consumers and in the interest of protecting the public this  deceptive practice should be forbidden by insurance department regulations. Thank you for your attention.

Curran Law Firm thanks you for  for reading this and for taking these actions.   They help protect both you and the general public in Missouri!

If you need help with an insurance policy issue or question, please feel free to call Robert Curran at Curran Law Firm at 417-823-7500.    We are experienced insurance attorneys,  having represented both insurance companies and individuals making claims against insurance companies for many years.



Should I Wear A Bike Helmet?

As both an experienced bike rider and an experienced injury attorney, I often get asked whether it’s important to wear a helmet while riding a bicycle. I hope that this post will help answer that question, and give you a good guide to turn to if you’re looking to buy a helmet.

Are Helmets Legally Required When Riding A Bicycle? In Missouri, the answer is generally, No. There is no Missouri state law requiring bicycle riders to wear helmets. Certain areas within the state, though, do have local laws requiring helmet use.  Creve Coeur, unincorporated areas of St. Louis County, Columbia, Florissant and St. Charles are some examples of Missouri areas which have local laws requiring helmet use.

Is Wearing A Helmet A Good Idea When Riding A Bicycle? The answer is a definite Yes. Bicycling Magazine recently wrote a lengthy and in-depth story about bicycle helmets, which I strongly recommend for anyone interested in buying a well-designed, well-built helmet.  At the time of this posting, the article can be found here. After a comprehensive survey of helmet use and helmet technology, the article’s conclusions were that:

  1. Helmet use saves lives, prevents some injuries and significantly decreases the severity of other injuries; and
  2. After remaining stagnant for four decades, helmet technology is finally advancing.

“I’m A Careful Rider.  Do I Really Need A Helmet?” Bicycle riding can be a dangerous activity under any circumstances, but it can be especially dangerous on the open road, where the rider has to share the road with cars and trucks. While it’s human nature to think “I’ll be careful” and hope for the best, the simple fact is that no matter how careful the bike rider is, a careless motor vehicle driver can seriously injure or kill them. In a collision between a car and a bicycle, it’s obvious who’s going to be more seriously hurt.

Both bicyclists and vehicle operators have an obligation to drive safely and reasonably. A lot of bike riders get upset with vehicle drivers who refuse to honor their legal obligation to share the road. But while there are some unsafe vehicle drivers, there are unsafe bicyclists, too. Bicycle riders also have an obligation to follow the rules of the road. That means bicyclists must stop at stop signs and red traffic lights, obey speed limits, and not endanger pedestrians. Too many times bicycle riders will simply blow through stop signs or traffic lights, thinking they don’t apply to them. They’re wrong.  And that often fuels drivers’ anger at bicyclists.

Children Should Definitely Wear Helmets. The simple fact is that children fall off their bicycles far more frequently than adults do, and it’s therefore more important that they wear helmets.  There are many reasons why they fall more.  Children generally spend more time riding than adults do.  Children generally have less experience riding bicycles, and generally have a less well-developed sense of balance, as well.  They also have less experience with traffic, leading them to be more likely to be startled by cars or trucks that they weren’t expecting.  All these factors combine to make kids mor elikely to fall than an adult.  Even though most kids feel that they’re bulletproof, we adults know that they’re not.

Are All Helmets The Same? The Bicycling Magazine article about helmets discusses new technology available which they said helps prevent or minimize concussions. If you’re in the market for a helmet, I strongly suggest you read the article, which as of this writing is here. It’ll help you make a better, more-informed decision on which helmet to buy.

But Remember: Whatever Helmet You Buy, It Will Only Help You If You Wear It.

Seek Help From An Experienced Attorney

If you or a loved one have been injured in a bike accident, contact an experienced attorney immediately. Bike accidents require quick and experienced legal and investigative response to preserve any evidence and help present your case in the best light possible. Our attorneys are experienced at helping injured people receive the financial compensation they need after their injuries. Contact the Bicycle Accident Attorneys at the Springfield, Missouri office of Rob Curran at www.CurranLawFirm.com or call us at 417-823-7500 for a free consultation.

What Does “Full Coverage Insurance” Really Mean?

When I first meet with new clients to discuss the possibility of representing them in connection with injuries they received in a motor vehicle collision, I always ask them about their own vehicle insurance policy. I do this for several reasons, one of which is that under recent changes to Missouri law, if they were driving without insurance they are not allowed to make certain kinds of claims even if the collision was not their fault at all.

when they tell me about their insurance, the response is almost always something like “Oh, I have full coverage.” I then explain to them that even though a lot of people use that term, from a technical point of view it really doesn’t mean anything. They’re always surprised by that.

Even though it happens all the time, walking into an insurance agent’s office and saying “I want full coverage” doesn’t really tell them what you want. It’s like walking into a restaurant and saying “I want some food.”  The waiter won’t know what to bring you.  And you might be very unhappy with what you get.

It’s very important to make sure you fully understand what her options are when you’re buying insurance. After all, you can’t pick how much insurance a driver that hits you is going to carry, but you can make that irrelevant, by making sure you buy enough insurance to protect you regardless of the other driver’s coverage level.

Insurance Coverage Info

The descriptions below are simple, basic explanations of some common types of consumer (not commercial) insurance coverages. They are not designed to be comprehensive, and in each case the injured person or their attorney needs to look carefully at each particular insurance policy or policies involved to determine what types and amounts of coverages are available in that particular situation.

Curran Law Firm has the knowledge and experience you need to thoroughly evaluate your potential case. If you have been injured but are unsure about what types of claims you can file, please contact us as soon as possible at 417-823-7500. Robert Curran is committed to getting all the information, helping interpret complicated insurance policies, and giving you guidance and trustworthy advice in your time of need.

Everyone should periodically look at their insurance coverage to make sure that you have enough coverage to not only protect your assets if you hurt someone else, but also to fulfill your own needs in case you get hurt by an uninsured or underinsured motorist.  Please check your own policy now to evaluate what you have, and to see if you have everything you need or want.

Most times, we then look at our clients’ policies and see that they did not buy some (usually very inexpensive) types of optional coverages, or if they did buy them, they are in amounts too low to fully cover the person’s injury.

insurance agents are supposed to carefully explain to you each of the different kinds of coverages   that are available for you to purchase, and explain what each is for, so that you can make an informed decision. Based on my conversations with many, many clients over the decades, it unfortunately seems that this kind of conversation very rarely occurs.

Here’s a basic description of some of the types of Missouri insurance consumer coverages available, and below that the description of each kind of coverage

  1. Motor Vehicle Liability Coverage
  2. Uninsured Motorist Coverage (“UM” Coverage)
  3. Underinsured Motorist Coverage (“UIM” Coverage)
  4. Medical Payments Coverage
  5. Collision Coverage
  6. Comprehensive Coverage
  7. Homeowners Insurance
  8. Excess or “Umbrella” Insurance

1.  Motor Vehicle Liability Coverage – (Required By Missouri Law)

This is the most basic component of a motor vehicle insurance policy, and in Missouri it’s required by law to be purchased. In this type of coverage, the insurance carrier promises to pay money to people other than its customer. The company issuing the policy essentially agrees that it will pay any money legally owed by the owner or operator of a specified motor vehicle to any person who is injured or damaged by the insured’s carelessness, up to a specified maximum dollar amount. Typically, there will be one specific maximum dollar amount payable to a single injured person, with a separate, larger maximum dollar amount payable to all injured persons as a result of a single accident, with a separate maximum dollar amount payable for property damage.

Missouri’s Motor Vehicle Financial Responsibility Law (which lawyers call the MVFRL) requires a motor vehicle owner to carry a policy with at least “25/50/10” in coverage. That means that the most any one injured person can get is $25,000, and that the maximum amount that the insurance company will pay for personal injuries for any single accident is $50,000, no matter how many people are injured. The last number means that the most they will pay for damage to any property from a single accident is $10,000.

For instance, let’s assume that Mr. Smith carried the minimum legal amount of ABC Insurance Company liability insurance and carelessly caused a motor vehicle accident in which four people were severely injured when he ran through the front window of a coffee shop. Even if Mr. Jones is made a quadriplegic from this crash, the most that ABC will pay to Mr. Jones under this policy due to Mr. Smith’s carelessness is $25,000. And the most that ABC will pay to the group of four injured people collectively is $50,000. If the coffee shop owner suffered $60,000 in property damage, the most ABC will be pay for the property damage will be $10,000.

Now these numbers don’t mean that’s the most these people can possibly get; it just means that that’s (generally) the most they’re going to get from ABC Insurance Company. The victims can still go after Mr. Smith for any additional unpaid amounts of any verdict after trial, and send the Sheriff out to take his house, his car, garnish his wages, bank account, etc.  So Mr. Smith better be careful to make sure he’s bought enough insurance to cover any claims against him to protect whatever assets he owns. (Sometimes insurance companies have to pay the full value of a claim, even if that’s more than the maximum amount shown on the insurance policy, but that’s pretty rare.  It can happen when  the insurance company acted in “bad faith,” which occurs when an insurance company fails to do what it promised,  and causes its insured to be harmed.

2.   Uninsured Motorist Coverage (“UM” Coverage) (Required By Missouri Law)

This is another legally-required component of a motor vehicle insurance policy in Missouri, but with an important difference. In this type of coverage, the insurance carrier promises to pay money to its customer, not to other people. In UM coverage, the insurance carrier essentially agrees that it will pay any money legally owed by an uninsured owner or operator of a motor vehicle to any of its insureds (and occupants of the insured vehicle) who are injured or damaged by the uninsured motorist’s carelessness, up to a maximum dollar amount specified on the declarations page.

If Mr. Johnson, who has no liability insurance of his own, crashes into Mrs. Walker’s car and she breaks her leg, Mrs. Walker can make a claim against her own insurance company, under her uninsured motorist coverage. In essence, her insurance company will act as if it insured Mr. Johnson at the time of this crash.

To illustrate one complexity in this type of coverage, Missouri’s MVFRL defines an uninsured motorist as someone who either has no liability insurance at all, or someone who carries less than the $25,000 in insurance required under Missouri law. In other words, if someone from another state drives into Missouri in a vehicle insured with the $15,000 in coverage required by their home state, even though that person does have insurance, they are still technically “uninsured” under Missouri law, and the injured person can make a claim under their Missouri uninsured motorist coverage.

Claims can typically be made under this type of coverage even if the insured vehicle was not in any way involved in the accident. For instance, if Mr. and Mrs. Dixon have a daughter who is on vacation in a different state when she is hit by an uninsured motorist while crossing a street, Daughter can make a claim under Mrs. Dixon’s XYZ Insurance Company policy insuring Mrs. Dixon’s 2005 Ford, even if that car was sitting in their garage when the accident happened. In addition, Daughter can also make a claim under the QRS Insurance Company policy insuring Mr. Dixon’s 2007 Chrysler, which was also not involved in accident, since Missouri law permits insureds to always “stack” uninsured motorist coverages, or add them to each other up until the point the injured person has been fully compensated.

One thing we’ve seen again and again is someone who comes in and shows us a policy that they’ve been paying the premiums for. The policy provides a larger amount of liability coverage (such as $100,000), but the minimum amount of uninsured motorist coverage ($25,000). We strongly suggest that you always carry as much in UM coverage as you do in liability coverage. Get a quote from your insurance agent, and you’ll see that the increase in your premium is usually extremely small, sometimes as little as only $20-50 per year.

3. Underinsured Motorist Coverage (“UIM” Coverage) (Optional in Missouri)

This is an optional component of a motor vehicle insurance policy in Missouri. In UIM coverage, the insurance carrier issuing the policy essentially agrees that if the careless person who caused the injury is insured and that carrier pays its full policy limits to the injured person, but that amount isn’t enough to fully compensate the injured person, the UIM carrier will pay more additional money to its insured to help compensate them. Exactly how much they’ll pay depends not only on what the injury was and how much insurance the careless person had, but also on how the UIM policy language is written. As with UM coverage, the insured’s vehicle doesn’t even have to be involved in the crash to be able to make a claim for UIM benefits.

Since UIM coverage is not required by law, the insurance company gets to write its policy to cover (or not cover) pretty much anything it wants, and calculate the amounts it should have to pay. Not surprisingly, in recent years insurance carriers have been cutting back on how much they’ll cover in a UIM situation. For instance, up until a few years ago, a $50,000 UIM policy typically meant “We’ll pay you up to an additional $50,000 over and above what the bad driver’s insurance company paid you.” Most companies have re-written those policies to dramatically decrease or even eliminate payouts under their UIM policies in some situations. For example, assume an injured person had $50,000 in UIM coverage and is made paralyzed for life by a driver with $50,000 in liability insurance coverage. In the past, the victim would get the $50,000 policy limit in liability insurance money, and her UIM carrier would then give her an additional $50,000.

Most insurance companies now have re-written their coverage to basically say that the victim now gets no money from their own carrier in this situation. The way they did this is to change the meaning to say: “When we issue you a $50,000 UIM policy, what we’re doing is making sure that, if your injuries are severe enough to warrant a $50,000 payment, you get at least $50,000 for your injuries. But we’re going to deduct from your coverage any money you get from the bad driver’s insurance company.” That means that, in this example, even though an objective person might view the paralyzed victim’s damages as being in the millions of dollars, her insurance company will pay her nothing at all. They’ll say, “We promised that you’d get at least $50,000; you got $50,000 from the bad driver, so we get a credit for that $50,000 towards our $50,000 policy limit, and even though that amount was inadequate to fully compensate you, we don’t owe you anything.”

Though additional laws are needed to protect consumer from these vanishing promises, there is a Missouri law that essentially says an insurance company can’t claim any credits if the UIM policy is only for $25,000.

We strongly suggestthat you always carry as much in UIM coverage as you do in liability coverage. Get a quote from your insurance agent, and you’ll see that the increase in your premium is usually extremely small, sometimes as little as only $20-50 per year.

  1. Medical Payments Coverage (Optional in Missouri)

This is an optional type of coverage that we recommend you buy. Also called “med-pay,” in this type of coverage, the insurance carrier issuing the policy essentially agrees that it will pay the reasonable and necessary medical expenses of any injured person who was either occupying the insured motor vehicle at the time of the crash or a pedestrian who was hit by it. This type of coverage becomes even more important if you do not carry health insurance coverage, or have a high deductible or co-pay on your health insurance. We recommended that you always carry medical payments coverage of at least $10,000.

As with some other coverages, the insured’s vehicle doesn’t have to be involved in the crash in order to be able to make a claim for medical payments benefits.  in other words, this kind of insurance protects you even if you’re riding in a friend’s car when it’s involved in a crash.

5. Collision Coverage (Optional in Missouri)

This is an optional type of coverage that we recommend that you buy. If you have a loan on your vehicle, your lender will almost always require this type of coverage. In this type of coverage, the insurance carrier issuing the policy agrees that it will pay to repair or replace the specific motor vehicle named in the policy if it is involved in a collision. The fair market value of the motor vehicle at the time of the collision is usually the most that the insurance company has to pay. Whether or not you need this type of coverage really depends in part on the year make and model of your motor vehicle, and how well you could financially suffer the complete loss of that motor vehicle if the collision is your fault. It’s also important to note that typically an insurance company couldn’t care less how much you paid for your vehicle or may still owe the bank; the most they’ll pay is the vehicle’s fair market value at the time of the collision. In other words, if you pay $4,000 on Monday for a vehicle which is really only then worth $2500 according to the NADA Guide or Kelly Blue Book, and it’s totaled on Tuesday in a collision, the most your company will pay you will be $2500. They’ll claim that’s all they owe, and that it’s not their problem that you overpaid and will still owe the bank $1500. For that reason, getting theses guides’ values to vehicle worth is also a very good way to negotiate a better purchase price with a seller and make sure you’re not overpaying for your vehicle.

6. Comprehensive Coverage (Optional in Missouri)

This is an optional type of coverage that we recommend that you buy. In this type of coverage, the insurance carrier issuing the policy agrees that it will pay to repair or replace the specific motor vehicle named in the policy if it is involved in some type of destructive event other than a collision. Examples of things that might be covered under portion of an insurance policy include: hail damage, tornado, hurricane, damage from falling trees. The fair market value of the motor vehicle at the time of the collision is usually the most that the insurance company has to pay. Whether or not you need this type of coverage really depends in part on the year make and model of your motor vehicle, and how well you could financially handle the loss of that motor vehicle if the collision is your fault. (Also see the discussion on vehicle values in Collision Coverage, above, which also apply here).

  1. Homeowner’s Insurance

In general, homeowner’s insurance not only provides coverage to the owner in case of a fire or other loss, but also provides liability coverage to the insured for certain types of claims. These policies almost always say they don’t provide any liability coverage for motor vehicle accidents, but they may provide coverage in the event the insured accidentally cause damage in other ways. For instance, there may be coverage if the homeowner is sued for accidentally causing a flood at a neighbor’s home due to landscaping changes, or if a neighbor’s child breaks his arm while not being adequately supervised by the homeowner who’s supposed to be watching him for his parents. There may also be theft loss coverage for things lost or stolen even while not at home. Almost every mortgage lender requires this insurance, which you should always carry if you own your home.

  1. Excess or “Umbrella” Insurance

This is a type of optional coverage that we recommend. Excess or “umbrella” insurance provides coverage for an insured after another policy has already paid its limits of insurance. For instance, suppose Mr. Smith carries $250,000 in motor vehicle liability insurance, but accidentally paralyzes someone in a car wreck. His car insurance company offers their $250,000 limit, but the victim’s medical bills alone may be far more than that. If he has no other insurance, Mr. Smith may lose his home or have to declare bankruptcy. But if he carries excess insurance, his excess carrier would then come in and pay the losses, up to their policy limit.

Since there are relatively few claims against these kinds of policies, they are usually fairly inexpensive (although the issuer of an excess policy may require you to carry a slightly more costly auto insurance policy). These policies sometimes cost as little as $150 per year for an extra $1 million in coverage.

How Does Missouri’s Drivers License Point System Work?

How Does Missouri’s Drivers License Point System Work?

An experienced attorney can help you analyze your particular situation and significantly improve your chances of getting a favorable resolution of any pending traffic court cases, which is important to preserve your ability to drive.  As a former Municipal Court Judge, I am very experienced in negotiating with prosecutors and resolving traffic matters in a way favorable to my clients.   Please call Curran Law Firm at 417-823-7500 or visit our website at www.CurranLawFirm.com.

Like most states, Missouri has a driver’s license system under which if you are convicted of a traffic offense, the state will put “points” on your driving record. Not every offense has points, but almost all “moving violations” do. If the number of points you have on your driving record reaches certain levels in certain periods of time, your driver’s license will be suspended or revoked. (It’s “revoked” if it’s for a year or longer; it’s “suspended” if it’s for less than a year.)

Point Levels For Suspension Or Revocation Of Your Driving Privilege

If you accumulate a total of 4 points in 12 months, the Department of Revenue will send you a “point accumulation advisory letter.” That’s basically a warning letter letting you know that if you get any more points your driver’s license will be suspended. While they are required to send that type of letter out, failure to get a letter like that does not mean that they can’t suspend your license. (For instance, if you get a enough points to suspend your license in a single incident, your license will still be suspended even though they didn’t have a chance to give you a warning letter.)

If you accumulate a total of 8 or more points in 18 months, the Department of Revenue will suspend your driving privilege.

1st suspension – 30 days

2nd suspension – 60 days

3rd or more suspensions – 90 days

 The Department of Revenue will revoke your driving privilege for one year if you accumulate:

12 or more points in 12 months

18 or more points in 24 months

24 or more points in 36 months

When your driving privilege is reinstated following a Point Suspension or Revocation, the Department of Revenue reduces your total points to 4, no matter how many points you previously had.

Every year you drive without getting new points on your record, the points will be reduced:

1 year — total remaining points reduced by one-third

2 years — remaining points reduced by one-half

3 years — points reduced to zero

It’s also important to note that even though your point level may go down to zero, certain types of convictions must remain listed permanently on your Missouri driver record.

An experienced attorney can help you analyze your particular situation and significantly improve your chances of getting a favorable resolution of any pending traffic court cases.  I am happy to help.

As a former Municipal Court Judge, I am very experienced in negotiating with prosecutors and resolving traffic matters in a way favorable to my clients.   Please call Curran Law Firm at 417-823-7500 or visit our website at www.CurranLawFirm.com.