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The American Tort Reform Foundation, the business lobby group that annually names Madison and St. Clair counties in Illinois, as “judicial hellholes” is at it again. In it’s annual attempt to scare the wits out of voters and small businesses, and to influence pro-business “tort reform” legislation, the ATRF has gone beyond it’s poorly masked attempt to influence jurors in what it views as “plaintiff friendly” venues. Now it has taken to including on the list venues which it believes are less troublesome than so-called hellholes, but worth mentioning.In this group it places St. Louis County, Missouri. Now, as an attorney practicing as a plaintiff’s attorney in Missouri for nearly 20 years, this would be laughable if the intent were not so calculatedly evil.For those who are not familiar with the political structure in Missouri, the City of St. Louis is not part of St. Louis County. The City of St. Louis operates as its own county. And the City of St. Louis has been known, for many years, as a “plaintiff-friendly” venue, justified or not. And it is true that plaintiff’s attorneys always felt they could get a fair shake in front of a City jury. Now, St. Louis County has always been a different animal. St. Louis County has been known as a “plaintiff-hostile” venue, where cases with strong liability and serious damages go to die. Ask any practicing trial lawyer in Missouri, and St. Louis County will be listed as a conservative venue. That’s not to say that plaintiff’s can’t win in St. Louis County, they can. Just as a strong liability case can be won in almost any venue. It is just that the perception has always been that juries in St. Louis County, like those in other conservative venues, generally seem to hold plaintiff’s to a higher legal standard than the law requires. While a civil case is to be decided on a preponderance of the evidence, it always seemed that conservative juries seemed to apply a reasonable-doubt standard.And that brings us back to the American Tort De-Form Foundation. In recent years there have been a few substantial verdicts rendered in St. Louis County where liability was clear and damages were severe. Such awards were clearly warranted and they haven’t been over-turned on appeal. This “trend” leads the ATRF to label St. Louis County as a near-hellhole. Preposterous!The reason for this designation is clear. The ATRF and its allies are seeking to taint jury pools. And taint them they will. In 2005 I tried a case in St. Clair County, one of the “hellholes.” Well, it isn’t a hellhole because of the jurors. The ATRF and it’s ilk so poisoned the jury pool that, in response to a written questionnaire prepared by the trial judge, 95% of the jury pool stated that “frivolous lawsuits” were driving up malpractice insurance rates and driving doctors out of Illinois. Interestingly enough, once the jurors heard a little bit about the medical malpractice case they were to hear, a vast majority agreed that my client’s suit wasn’t frivolous and that they would listen to the evidence before they made up their minds. The case settled on day 3 of trial.There are no “judicial hellholes,” only thinly veiled attempts by the pro-business lobby to do anything possible to improperly influence jurors, voters and legislatures with ridiculous “studies” which prove only that if you pay enough for it, you can get a “study” to say anything you want, even that one of the most conservative venues in Missouri can be labeled as a “hellhole.”

You’ve been injured, whether it was in a car accident, work place injury, or due to medical malpractice or as a result of a faulty product. Have you ever thought about how you talk to your doctor about these injuries? No? Well you should …

Doctors write office notes and reports about every office visit they have with you, and every time they see you in the hospital. Doctors are the historians of your medical condition. What they write can affect any legal case you may have. Whatever the doctor documents about your injury or condition is what the insurance company, defense attorney, judge and jury will see. And all too often, if you try to say “that isn’t what I said!” who do you think that insurance company, defense attorney, judge and jury are going to believe?

Doctors are just like everyone else. They want to be successful at what they do. They want their patients to get better. As a result, doctors records tend to be biased in favor of recovery. I’m not saying it is an intentional bias. In most cases, it is not. It is just that their job is to make you better and they want to believe that they are achieving that goal.

So … how does what you say to your doctor affect what they write? Simple: unless you are 100% recovered, never tell a doctor “I feel fine” or “I feel better.” We all know that those statements are usually followed by an “except ….” “Doc, I feel fine, except my left leg is still killing me. I can’t bend it the way I should and the pain wakes me at night.” If your doctor has been treating this condition for awhile, chances are, his records will record: “Patient feels fine” or “patient improved.” In fact, you aren’t. And you’ve just created a hurtle for you and your attorney to overcome.

So, resist the temptation to say “I’m better” or “I’m fine” if you aren’t. Prepare for your visit with your doctor. Think about how your injury or condition has been since you last saw your doctor. Be prepared to tell him, quickly and succinctly, each of your complaints. Tell him or her what triggers any pain. Tell them if it hurst after certain activities or at certain times of the day. Be prepared to give them examples of things that your injuries have kept you from doing, or have made difficult to do, such as housework, your job, recreational activities. Don’t exaggerate. Never exaggerate! Simply list your problem and leave out “I’m fine” out of your vocabulary until there is nothing else on that list of things that are hurting or bothering you. Then, and only then, are you “fine.”

I recently learned of an interesting article in the Medical Liability Monitor, an industry publication on medical malpractice. In the April 2008 issue, Phil Dyer, V.P. of Professional Liability Division of Kibble & Prentice, declares that the volatility in the healthcare professional liability market may finally be over. Mr. Dyer cites 6 reasons–and not one is tort “reform.”

  • Reinsurance Changes: Reinsurers, large companies who buy packages of insurance risk, have reduced their holdings in property insurance following Hurricane Katrina and are purchasing more malpractice risk packages, driving down the cost of reinsuring.
  • Reduced Frequency of Claims: The number of claims per bed for hospitals and the number of claims per doctor has dropped significantly in recent years. No reason is listed, but it would appear to be the result of better managing risk, as described below.
  • Reaping Rewards of Previous Years: This is my favorite! In recent years the insurers have hike premiums, dropped physicians and generally caused havoc. Now, as a result of a reduced frequency of claims, they are “reaping the rewards.” In other words, they are now seeing the profits from those years of sky high premiums that they were claiming they needed to keep from going broke! As a result of years of gouging hospitals and doctors, insurers are reaping record profits!
  • Companies Have Money to Spare: Obviously, the insurance companies don’t want their customers and the public to know this, but it is there in black and white and it is a direct quote: “With clean books of business, robust premiums and a favorable claims environment, there is a great deal of room for companies to be aggressive and lower rates.” Here we go again … the same cycle we’ve seen for years. The insurance companies cry wolf, raise rates and drop coverage claiming that the lawyers are driving doctors out of business, then the companies suddenly have “money to spare,” begin cutting rates, insuring doctors who shouldn’t be practicing and then the cycle will repeat, ad nauseum.
  • Healthcare Delivery System is Better at Preventing Claims: This is the first thing that is actually good news for patients. In light of the skyrocketing premiums over the past few years, hospitals and doctors have worked to reduce mistakes, and they’ve been successful to some extent in doing this. Every attorney welcomes this.
  • The Trial Bar Cannot Afford to Bring Cases that Have Little or No Settlement Value: This is the industry’s only attempt to indirectly link their improved fiscal position with tort reform, and it is simply a fantasy. Those of us who specialize in Medical Malpractice have never taken marginal cases. We have never been able to spend money to investigate claims without merit. What does happen, as Mr. Dyer recognizes, is that attorneys who don’t concentrate in medical negligence cases can, and often do, prosecute cases where liability is not clear. They then often lose those cases and the health care industry rolls out the term “frivolous” to describe the suit. A loss does not mean frivolous. It just means that the attorney wasn’t able to prove the case.
  • What does this mean to patients? Probably not much. Hopefully, doctors and hospitals will continue to implement practice modifications that will “prevent claims.” Hopefully, the insurers will stay off the roller coaster of raising and lowering premiums so that doctors and hospitals can better predict these costs, but that probably won’t happen. Hopefully, the next time reinsurance costs go up because the reinsurers have found a better place to park their money, the insures won’t scream “tort reform” and try to take away the rights of the very patients who are injured by doctor’s and hospital’s negligence, but that probably won’t happen either. Maybe, just maybe, someone will pull this article from Medical Liability Monitor and waive it in the face of the insurance industry and cut off the argument. Maybe … but don’t hold your breath.In the mean time, trial attorneys will keep protecting the victims of medical negligence and dangerous products.

    Accidents involving semi-trucks, 18 wheelers and commercial trucks present many unique challenges when they cause injury or death to other drivers.  Because of their size and the speeds involved, such accidents can often cause severe injuries.

    Trucking accidents can be the result of speed, inattention, or lack of sufficient rest by the driver.  Over the road drivers must follow strict regulations as to time driven and rest breaks.  A driver who is not following these regulations may create a danger for himself and others.

    If you have been involved in an accident involving a truck, it is important that you contact an attorney immediately.  It is vital that evidence be retained and obtained.  Your attorney may need to obtain information from the truck’s “black box,” an accident reconstruction may need to be performed, the scene of the accident must be documented before important evidence such as skid marks, debris and damage is lost.  Trucking accidents may be caused by equipment malfunction or failure on the truck, such as brake or tire failure.  These things must be investigated as soon as possible and the evidence maintained.

    If you have been involved in a trucking accident, please call Todd N. Hendrickson, immediately.  Todd N. Hendrickson practices law throughout Missouri and Illinois and can discuss any potential claim you may have.

    If you suspect you or a loved one may be the victim of medical negligence (medical malpractice) you should begin to make note of people involved in the care.  In a hospital setting, you should note the names of doctors, nurses and technicians who are caring for the patient.

    If any type of surgically implanted device is removed as a result of treatment, you should request that the item be retained and turned over to you.  You should make that request in writing, to the surgeon involved and to the hospital or surgical center.  If you are refused, ask to receive a written reason for the refusal.

    If you are suspicious of medical malpractice, you should obtain second opinions or consults regarding the care and, if at all possible, from a physician unaffiliated with the hospital or doctors whom you suspect have been negligent.   There are several reasons for this:  First, “independent” consulting physicians will tend to document their true findings and conclusions, even if they don’t want to be a witness against another doctor or hospital, if for no other reason than to establish that they have not been negligent in their care.  Second, sometimes a second opinion can cause a shift in treatment which can mitigate or eliminate problems arising from the initial negligence.  Although this is not beneficial to a subsequent medical malpractice legal action, if it results in an improved result for the patient, that is the primary consideration.  Third, a consultant will provide independent documentation of findings which cannot be altered or amended by a negligent party.

    Also, you should, as soon as you suspect medical malpractice, obtain a copy of the relevant medical records for your files.  The sooner you request this, the less likely that important records will be lost, “updated” or “amended.”

    Finally, if you suspect you are the victim of medical malpractice, you should consult with an experienced, qualified attorney as soon as possible.  Experience in handling medical malpractice claims is a must.  The lawyer you choose should spend the majority of his or her time handling medical malpractice claims and should have done so for many years.  You should also consider whether the attorney you choose will handle the case himself or delegate important aspects of your case to less experienced attorneys or associates.  It is vitally important that the attorney who will handle the trial of the case also handle the preparation of the case.