Category Archives: Missouri Legal News
Congress did something SMART… no really: St. Louis Trial Lawyer Breaks Down The SMART Act of 2013.
How to Handle Medicare Liens on Personal Injury Cases
While we were all worrying about falling off the fiscal cliff, Congress and the President did something SMART… literally. The SMART Act was signed by President Obama on January 10, 2013. It makes numerous complicated administrative changes to Medicare that effect personal injury cases where the employee or plaintiff is on Medicare and has had treatment paid by Medicare. While most of this may be over the average person’s head, if you stop reading now, just know that something “good” happened to reduce bureaucracy and to speed up settlements that need the federal government’s approval.
For example, when a senior citizen covered by Medicare is treated after an accident or an injury, it’s generally paid for by Medicare. Those medical expenses must then be reimbursed through insurance or a legal settlement. But, the process by which that was to happen has not been running smoothly. The Strengthening Medicare and Repaying Taxpayers, or SMART, Act aims to remedy that.
Many claims involving Medicare beneficiaries could not settle because the parties could not determine their respective obligations to reimburse the federal government in the Medicare Trust Fund. The result was a lose-lose-lose for the beneficiary, the defendant, and the Medicare Trust Fund – all because under the former law, Medicare had no pathway to provide the amount due the Trust Fund for “conditional payments” – those payments previously made by Medicare for the injury that will be covered by the settlement.
The SMART Act fixes this problem by creating a process for Medicare to advise parties in the process of settling, before settlement, of how much is owed, so that the parties can appropriately allocate and resolve their Medicare obligations during settlement. By requiring Medicare to provide the amount due within 65 days of a request, the settling parties will know how much money has to be set aside for Medicare, and factor that amount into their final settlement.
There were numerous other changes. I have summarized some of them for you below. These amendments will require changes to settlement procedure, lien resolution and reporting, and release language. If you are on Medicare and have a personal injury case, make sure you have a lawyer that knows and understands the SMART ACT.
SUMMARY OF SOME OF THE CHANGES
Access to Information About How Much Medicare Paid
Old Law: Did not require Medicare to give immediate access to the conditional payments that were made on behalf of a claimant.
New Law: Up-to-date Conditional Payment Information Available Online
Claimants and responsible reporting entities (RREs, as defined by 42 U.S.C. § 1395y(b)(8)) will now have access to up-to-date information on the claims for which conditional payments have been made by CMS. Again, conditional payments are those payments previously made by Medicare for the injury that will be covered by the settlement. The SMART Act requires CMS to make claims information—including payment amounts and information regarding claims related to a potential settlement, judgment, or other payment—available to claimants or their authorized representatives and RREs (that have obtained the claimant’s consent) through a secure website. This information must be updated no later than fifteen (15) days after the date that payment is made.
Additionally, claimants or RREs now may provide notice to CMS that a settlement, judgment, award, or other payment is reasonably expected and the date of the expected payment up to 120 days before the reasonably expected date of the payment.
CMS already has a web-based portal for claims information, the Medicare Secondary payer Recovery Portal [https://www.cob.cms.hhs.gov/MSPRP/], which appears to satisfy the requirements of the SMART Act. Final regulations must be promulgated by October 10, 2013, nine (9) months after date of enactment, the effective date of this provision.
Pre-Settlement Lien Demands
Old Law: Medicare could not provide a final lien demand until after settlement. The inability to finalize Medicare’s reimbursement interest prior to settlement complicated settlement and lien resolution.
New Law: Establishing Conditional Payment Exposure Prior to Settlement
The SMART Act provides a mechanism by which a claimant or RRE (responsible reporting entities as defined by 42 U.S.C. § 1395y(b)(8)) determines liability for conditional payments prior to a settlement, judgment, award, or other payment for conditional payments. To do so:
- the claimant or RRE (with the claimant’s consent) must obtain a statement of reimbursement amount from the website during the “protected period”—defined as the time, if any, after the expiration of the federal government’s response period following notice of a settlement, judgment, award, or other payment
- the federal government’s response period is 65 days following notice
- it may be extended by an additional 30 days if additional time is required to address claims for which payment has been made
- it does not include any days where there was a failure in the claims payment and posting system due to exceptional circumstances as defined by regulation
- the related settlement, judgment, award, or other payment must be made during that period, and
- the last statement of reimbursement downloaded during that period and within three (3) business days of the date of the settlement, judgment, award, or other payment shall constitute the final conditional amount subject to recovery by the federal government related to that settlement, judgment, award, or other payment.
Final regulations must be promulgated by October 10, 2013, nine (9) months after date of enactment, the effective date of this provision.
Minimum Values Established
Old Law: The Medicare Lien reimbursement process currently applies even to settlements of minimal value.
New Law: The SMART Act establishes a threshold below which the lien reimbursement and Section 111 reporting obligations do not apply. The threshold will be established each year beginning in 2014. The minimum threshold exception does not apply to settlements concerning alleged ingestion, implantation or exposure (including asbestos).
UPDATED July 31, 2013:
To further explain the minimum values… the SMART Act requires HHS to set a “single monetary compliance threshold” for certain claims, starting on November 15, 2014. The purpose underlying that amendment is to avoid expending resources in seeking to recover conditional payments the value of which is less than the expense necessary to recover them. This is sort of a common sense provision as you will. The “monetary compliance threshold” that the Act contemplates would be a dollar figure that defines the minimum value of a conditional payment for which Medicare could pursue reimbursement without wasting more resources in seeking to recover the payment than the claim itself is worth. The SMART Act requires the Secretary of HHS to set and adjust that minimum threshold figure no later than November 15 each year, starting in 2014. Attorneys should calander this date to learn the threshold for that year.
The monetary compliance threshold does not apply to all conditional payments. More specifically, the monetary compliance threshold applies only to (1) liability TPOC reporting (total payment obligation to the claimant); and (2) conditional payments pertaining to “alleged physical trauma-based incidents,” but not incidents based on alleged ingestion, implantation, or exposure.
§111 Penalty Modification
Old Law: Companies that reported settlements involving Medicare beneficiaries to CMS either late or erroneously were subject to automatic fines of $1,000 per-day, per-claim.
New Law: Such penalties are now discretionary, not automatic. HHS is directed to create “safe harbors” for companies that report in good faith, despite being late or in error. §203, SMART Act.
No SSN or HICN
Old Law: Claims professionals and settlement parties use claimants’ Social Security numbers (SSNs) or Health Insurance Claim Numbers (“Medicare numbers”) to access claimant health records. This situation has obvious and troubling privacy implications.
New Law: Within 18 months, the Secretary of HHS is to change §111 of Mandatory Insurance Reporting to make use of SSNs and Medicare numbers optional rather than required. Medicare beneficiaries are understandably reluctant to provide this information – given the high incidence of identity theft. The SMART Act protects beneficiaries’ sensitive personal information while also reducing professionals’ liability exposure in the event of subsequent beneficiary identity theft. §204, SMART Act.
UPDATE: July 31, 2013
I received a call from a lawyer today asking if SSN’s are still required as his client does not want to give out his SSN. As of this date, SSN’s are still required. The Act provides that CMS must implement this requirement within 18 months of the SMART Act’s enactment, or by the middle of 2014. That deadline is not a firm one, however. The Act permits the Secretary of the Department of Health and Human Services (HHS) (the agency in which CMS operates) to request an extension of that 18-month deadline by “one or more periods up to one year each” if the Secretary believes that eliminating the use of social security numbers and health insurance claim numbers by the operative deadline “threatens patient privacy or the integrity of the secondary payer program[.]” I will keep monitoring for changes but I suggest if you are an attorney and uncertain that you contact the HHS Department.
Three-Year Statute of Limitations
Old Law: The MSP statute permits the government to pursue settling defendants for unsatisfied Medicare Liens in certain circumstances, even after the defendant has paid settlement funds to the plaintiff. Unclear law and inconsistent court rulings left settlement parties without a clear answer on the scope of the statute of limitations for the government to bring an action seeking conditional payment.
New Law: The SMART Act codifies a 2010 U.S. District Court decision – U.S. v. Stricker – which held that the government must file a complaint within three years of receiving notice that a judgment or settlement has been reached. §205, SMART Act.
Full Text of H.R. 1845: http://www.gpo.gov/fdsys/pkg/BILLS-112hr1845rds/pdf/BILLS-112hr1845rds.pdf
A Lawyer’s Timeline Under SMART for Finding Out How Much to Pay Back Medicare
For those lawyer fans of this blog, starting in October 2013, you should follow these rules to obtain a Final Conditional Amount.
- T-120 days to settlement – Send an Expected Settlement Notice to the MSPRC;
- T-115 days to settlement – Check to see if the MSPRC received the Expected Settlement Notice. Everyone knows the MSPRC response, “we don’t have that in the file” or “I don’t see that here.” If you don’t check you might waste the entire process.
- T-55 days to settlement – You should receive notice that the Final Conditional Amount is available for download on the MSPRC website, or more likely, the Medicare Secondary Payer Recovery Portal (MSPRP). If you have not, contact the MSPRC to check the status. Keep in mind the rule states they have 65 days from receipt of your notice – so we will have to keep track of how they define the word receipt. If your case qualifies for “exceptional circumstances” the MSPRC will tell you it needs another 30 days to process the Final Conditional Amount.
- T-25 days to settlement – You should receive notice that your exceptional circumstances request is completed and the Final Conditional Amount is available for download.
- T-3 days to settlement – You must download the Final Conditional Amount from the designated website. If you do so at 4 days to settlement it is apparently invalid and does not constitute a Final amount. If you do so more than 3 days after settlement (we believe after is still okay – the rule uses the word “within”) it is also invalid.
-Published January 31, 2013. Authored by Michelle M. Funkenbusch, St. Louis Trial lawyer
If you know someone in need of a personal injury lawyer, please contact St. Louis Personal Injury Lawyer Michelle Funkenbusch at 314-338-3500 .
© 2013 The Law Offices of Michelle M. Funkenbusch, LLC. All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.
Do You Have or Want a Home Office? A New Tax Law May Benefit You!
IRS Announces Simplified Option for Claiming Home Office Deduction Starting This Year; Eligible Home-Based Businesses May Deduct up to $1,500; Saves Taxpayers 1.6 Million Hours A Year
The Internal Revenue Service today announced a simplified option that many owners of home-based businesses and some home-based workers may use to figure their deductions for the business use of their homes.
In tax year 2010, the most recent year for which figures are available, nearly 3.4 million taxpayers claimed deductions for business use of a home (commonly referred to as the home office deduction).
The new optional deduction, capped at $1,500 per year based on $5 a square foot for up to 300 square feet, will reduce the paperwork and recordkeeping burden on small businesses by an estimated 1.6 million hours annually.
“This is a common-sense rule to provide taxpayers an easier way to calculate and claim the home office deduction,” said Acting IRS Commissioner Steven T. Miller. “The IRS continues to look for similar ways to combat complexity and encourages people to look at this option as they consider tax planning in 2013.”
The new option provides eligible taxpayers an easier path to claiming the home office deduction. Currently, they are generally required to fill out a 43-line form (Form 8829) often with complex calculations of allocated expenses, depreciation and carryovers of unused deductions. Taxpayers claiming the optional deduction will complete a significantly simplified form.
Though homeowners using the new option cannot depreciate the portion of their home used in a trade or business, they can claim allowable mortgage interest, real estate taxes and casualty losses on the home as itemized deductions on Schedule A. These deductions need not be allocated between personal and business use, as is required under the regular method.
Business expenses unrelated to the home, such as advertising, supplies and wages paid to employees are still fully deductible.
Current restrictions on the home office deduction, such as the requirement that a home office must be used regularly and exclusively for business and the limit tied to the income derived from the particular business, still apply under the new option.
The new simplified option is available starting with the 2013 return most taxpayers file early in 2014. Further details on the new option can be found in Revenue Procedure 2013-13, posted today on IRS.gov. Revenue Procedure 2013-13 is effective for taxable years beginning on or after Jan. 1, 2013.
If you want information on how to create your own home-based business, form a L.L.C., or have other business related questions, do not hesitate to contact the Law Offices of Michelle M. Funkenbusch. Working in conjunction with attorney Joan M. Swartz and reputable accountant advisors, we can answer any question you may have. Call 314-338-3500 for more information.
Audio Recording of Police Once Again Found to Be Protected By Right to Free Speech. Author: Trial Lawyer Michelle Funkenbusch
Audio Recording of Police: Constitutionally Protected under the First Amendment According to St. Louis Trial Lawyer
St. Louis Civil Rights Trial Lawyer Michelle Funkenbusch isn’t surprised if this First Amendment ruling makes you scratch your head but simply put… “recording public police speech” = “speech”. So yes… laws attempting to limit the audio recording of speakers (even though the person recording is not necessarily speaking) can violate the recorder’s constitutional protections of free speech.
The U.S. Supreme Court on Monday delivered a blow to Illinois’ 50-year-old anti-eavesdropping law according to trial lawyer Funkenbusch. The Illinois Eavesdropping Act, enacted in 1961, makes it a felony for someone to produce an audio recording of a conversation unless all the parties involved agree. It sets a maximum punishment of 15 years in prison if a law enforcement officer is recorded. In refusing to hear the appeal, the U.S. Supreme Court let stand a lower court finding that major parts of the eavesdropping law violate constitutional protections of free speech.
The 7th Circuit majority found that the Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. In particular, the court noted that the statute restricts far more speech than necessary to protect legitimate privacy interests.
THE LAW AT ISSUE: Felony to Record Police Acting in Official Capacity Performing Public Duties
The provision at issue of the Illinois eavesdropping law is 720 ILCS 5/14-4 . It imposes a Class 1 felony penalty upon an individual who, in violating § 14-2 of the statute, records an oral conversation of a police officer or certain other public officials in the performance of their official duties. This provision and its explicit effect has long been criticized. In fact, the Illinois State Bar Association proposed legislation, originating through its Intellectual Property Section Council, amending the Illinois Eavesdropping Statute to eliminate the very effect of § 14-4.
In the appeals court ruling in May, the 7th U.S. Circuit Court of Appeals found that 720 ILCS 5/14-4– one of the toughest of its kind in the country – violates the First Amendment.
[Legal Fact of the Day: The First Amendment states; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.“
This case came about when the ACLU of Illinois brought suit against Cook County State’s Attorney Anita Alvarez in 2010, after her office wanted to bring charges against ACLU staff recording audio of “police officers performing their public duties in a public place and speaking loudly enough to be heard by a passerby.”
On May 8, 2012, the 7th Circuit U.S. Court of Appeals in Chicago sided with the ACLU, ruling that audio or audiovisual recording of police doing their public duties in a public place, particularly in the case at hand, is indeed a constitutionally protected right under the First Amendment right to free speech.
Civil right’s activists believe the ability to record helps guard against police abuse. The most notorious incident was the infamous 1991 videotaping of LAPD officers beating Rodney King. The taping created a media scurry and national controversy over the effect of racial tensions between police and crime suspects.
The eavesdropping law’s proponents, however, say it protects the privacy rights of officers and civilians, as well as ensures that those wielding recording devices don’t interfere with urgent police work. Officers argue the recordings are often done by harassing paparazzi-like mobs at scenes where they are attempting to make legitimate investigations and arrests. People attempting to You-Tube and Facebook arrests can get in the way of legitimate police business.
Nevertheless, based on the U.S. Supreme Courts denial to hear the appeal, free speech has found a win over the need for police to do their job unaffected by surrounding crowds.
On a historical note, it was not until the flag-burning cases of 1989 (Texas v. Johnson) and 1990 (United States v. Eichman), that the Supreme Court accepted that non-speech means of communicating applied to freedom of expression and freedom of speech. According to St. Louis trial lawyer Michelle Funkenbusch, in the case at hand, we are seeing a new non-speech definition of speech… i.e. the act of recording communications.
This isn’t the first case on the issue of the “Right to Record”. Just last year, the First Circuit Court of Appeals held that the First Amendment provided and protected the right to record police in their official capacity in Glik v. Cunniffe, et al., No. 10-1764 (1st Cir. Aug. 26, 2011). The First Circuit held, “A citizen’s right to film government officials … in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
The Seventh Circuit Court of Appeals ruling on the Illinois law is consistent with this First Circuit ruling on recording laws in Massachusetts. This lack of conflict in the Circuits may be why the U.S. Supreme Court rejected hearing the case.
-Published November 27, 2012. Authored by Michelle M. Funkenbusch, St. Louis Trial lawyer
If you know someone who has been arrested or harassed for recording the police, contact trial lawyer Michelle Funkenbusch at 314-338-3500 to have your civil rights case reviewed.
© 2012 The Law Offices of Michelle M. Funkenbusch, LLC. All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.
Learn Food Warranty Law Before You take Another Bite: Missouri Personal Injury Lawyer Gives You Some Legal Thoughts to Chew on.
We ALLL have food on the brain the day before Thanksgiving. So Missouri personal injury lawyer, Michelle Funkenbusch sums up Food Hazard/Choking Law for You:
According to Missouri personal injury lawyer, Michelle M. Funkenbusch, if you are injured at a restaurant choking on food hazards (like bones/plastic/toothpicks), Missouri courts follow warranty law to determine liability. The same is true if you purchase a turkey from your local grocery store, cookies from your local scout troop, or candy from a vending machine, or even a beer from your local pub. Specifically, Missouri follows the common law principle that there is an implied warranty as between the retail dealer and the consuming purchaser in the sale of food, including a warranty of freedom from foreign substances which may be injurious to the purchaser. Degouveia v. H.D. Lee Mercantile Co., 231 Mo.App. 447, 100 S.W.2d 336, 339 (1936). A claim for common law implied warranty of fitness for consumption requires that a Plaintiff show: (1) the defendant sold a food substance meant for human(or animal) consumption; (2) the plaintiff (or your animal) ate or drank the food/drink; (3) when the defendant sold the food/drink it was not fit for human(or animal) consumption; and (4) the Plaintiff was damaged as a direct result. See Missouri Approved Instructions (MAI 25.02).
[RANDOM LEGAL FACT OF THE DAY: The MAI is the book of jury instructions relied on by courts to instruct the jury what must be proved in a particular case. The Missouri Supreme Court committee on jury instructions creates this book and it must be reviewed and used in every civil case that goes to trial.]
Grandma’s Food Almost Killed Me!!
What if you are at your Grandma’s house for Thanksgiving and you choke on a foreign substance that you could/would not have inspected in the food? Assuming it was not added to the food by your grandmother (which of course will be a defense of the seller and manufacturer), you may have a case for a personal injury lawyer to review. It doesn’t matter that you didn’t buy the food at a restaurant or store. If the injured party in a choking case was not the purchaser of goods, but is a natural person who is a member of the family or household of the buyer, or was a guest in the buyer’s home, and it was reasonable to expect that such person would consume the food/drink, then the seller or manufacturer can be liable under the Uniform Commercial Code. In other words, even though you lack “privity of contract” you may be able to recover and should seek the counsel of a St. Louis personal injury lawyer. And yes, you could sue Grandma for negligent cooking… but that’s just not nice!
Missouri Personal Injury Case Against the Manufacturer??
If you have sustained personal injury in Missouri as a result of the consumption of a foreign body or substance in a food or beverage sold, you may also, under proper circumstances, maintain an action to recover damages for such injury against the manufacturer of the product, on the ground of breach of an express or implied warranty. In the absence of an express warranty (something actually written on the product or packaging), the law implies that the manufacturer or packer of foods intended for human consumption warrants that his products are fit for human consumption, and that he has used in the selection and preparation of such products the degree of care ordinarily exercised by persons skilled in the business of preparing and packing food for distribution or sale to the general public.
A manufacturer, in the proper factual situation, is held as an “absolute insurer against knowable dangers”, and thus has an incentive to keep abreast of scientific knowledge to keep knowable dangers out of their products. But, in some cases (like in the case of cigarettes), what is knowable can be difficult to prove without a great deal of expense and highly trained personal injury lawyers. Ross v. Phillip Morris, 328 F.2d 3 (United States Court of Appeals Eighth Circuit 1964).
Other Theories a St. Louis Personal Injury Lawyer May File Suit for in A Food Hazard Case
You may also have the right to sue under other theories of personal injury. For example, you may have a claim under the Uniform Commercial Code for breach of an implied warranty for fitness for a particular purpose or breach of implied warranty of merchantability (fitness for an ordinary purpose) in general. You may also have a claim for strict liability for a product defect or for failure to warn. These are complicated claims and require the expertise of an experienced St. Louis personal injury lawyer.
Choking on Bones in the Turkey vs. Glass in the Turkey… why is one a good case and one a bad case?
To have a good case of liability, you usually have to have been injured by something foreign to the food you were eating, but not always. Liability for injuries caused by a substance in food will often depend on whether the substance in question is considered to be “foreign.” Under the so-called foreign-natural test that many other states rely on, there is no liability for injury caused by a substance that are considered “natural” to the food sold. If the object is one that is naturally associated with the type of food in which it is found, it is not considered to be foreign, since the occasional presence of such objects is something to be anticipated by the consumer. Thus, for example, a hardened, crystallized grain of corn has been held not to be foreign to a package of corn flakes, and a bone has been held not to be foreign to a canned food product containing meat of the kind from which the bone came. However, some courts have held that objects which are natural to the type of food involved but which generally are not found in the style of the food as prepared may be deemed to be the equivalent of a foreign substance. Thus, in an action against a packer of canned chicken for injuries sustained from a chicken bone in chicken chow mein served at the plaintiff’s school and made from the defendant’s product, the chicken bone was held to be “something that should not be” in defendant’s product, which defendant had advertised as “boned chicken.” It has also been held in other states that breach of an implied warranty of fitness is shown by proof of a piece of oyster shell in a can of oysters sold by a defendant retailer, even if it appears that shells cannot be entirely eliminated in the canning of oysters.
Several states have rejected the “foreign-natural” test in favor of what is known as the “reasonable expectation” test. This test is based on what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to its preparation.
The “foreign-natural” test apparently continues to be the rule in most jurisdictions. In states where the “foreign-natural” test is applied, even if an injured plaintiff can establish an otherwise legally sufficient claim of negligence, breach of implied warranty, or strict tort liability, a food processor may be free from liability as a matter of law if the deleterious object or substance in the food is natural to the ingredients of the product. However, in states where the “reasonable expectation” test is the rule, liability might be incurred on any appropriate theory even for a “natural” defect if it is one not reasonably anticipated by the consumer. There appears to be a recent trend among several states toward acceptance of the “reasonable expectation” test.
Missouri has yet to directly adopt either test mentioned above and leaves the fitness for consumption a question for the jury. This grey area of the law is another reason why you should consult with an experienced Missouri personal injury lawyer.
Michelle M. Funkenbusch has handled cases involving plastic in pudding, foreign substances on buffets, rat parts in frozen spinach, lead poisoning, and more. Contact her if you would like to discuss your potential case for free at 314-338-3500.
© 2012 The Law Offices of Michelle M. Funkenbusch, LLC. All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.
Safety Tips for Halloween from Personal Injury Lawyer Michelle Funkenbusch
Car v. Pedestrian Accidents Safety Checklist for Halloween
According to U.S. Census data, there are about 41 million potential trick-or-treaters between the ages of 5 and 14. Add that statistic to the fact that in 2010, 41 percent of all highway fatalities across the nation on Halloween night (6 p.m. Oct. 31 to 5:59 a.m. Nov. 1) involved a driver or a motorcycle rider with a BAC of .08 or higher, Halloween night requires added attention to safety to all those walking from house to house.
According to statistics from the U.S. Department of Transportation, in four out of six years between 2006 and 2010, more pedestrians under the age of 21 were killed by cars on Oct. 31 than on Oct. 30 or Nov. 1. Taking steps now and remembering them on Halloween night can prevent a pedestrian vs. car accident.
Here a few tips to reduce car v. pedestrian accidents this Halloween from Saint Louis personal injury lawyer Michelle Funkenbusch:
1. Carry a flashlight or glowstick and wear glow-in-the-dark necklaces or attach reflective tape to costumes, wagons, and bags.
2. Loose fitting clothing and oversized shoes can trip a trick-or-treater when crossing the street, so they should practice walking/running in their costume safely. Cut any costumes shorter if necessary.
3. Pirate swords and masks are cool, but are dangerous and masks can obscure vision. Thus, leave the swords at home (or make one from a poster board and aluminum foil) and use face paint instead of masks.
4. Remind kids to cross at crosswalks or at a corner with you. They should also always make eye contact with drivers before stepping into the street and ALWAYS look left, right and left again.
5. For parents and kids, take out the headphones and no texting and walking especially when crossing the road.
6. Avoid the decorative contact lenses — they could blur your vision at night.
7. Many car accidents happen when a vehicle is pulling out of a driveway; kids should always look for cars when walking by a driveway.
8. Stay with a group as you and your children are more visible.
9. In urban areas, make sure children understand they cannot dart out between cars and that they may not see oncoming traffic.
Halloween trick-or-treaters need to be careful, but so do drivers. Drivers need to know that kids will be out of the streets looking for candy and not looking for cars. Avoid a car accident with a child by increasing your look-out for pedestrians. A few extra seconds could prevent a pedestrian vs. car accident!!!
Prepare now to have a safe and enjoyable Halloween. Be safe and watch out for those who aren’t!
Hyperbaric Oxygen Therapy to Treat Nursing Home Patient Wounds
NURSING HOME NEGLIGENCE LAWYER ON WOUND CARE
Des Peres Hospital opened a new outpatient wound care center Monday that treats patients with chronic or non-healing wounds associated with, among other things, diabetes, pressure ulcers, trauma, peripheral vascular disease, poor circulation, immobility and other conditions. The center offers two chambers for hyperbaric oxygen therapy to reduce swelling, fight infection and build new blood vessels, ultimately producing healthy tissue.
Pressure ulcers are the most common cause for a lawsuit against nursing homes, if they are due either to a lack of prevention or improper treatment. The Wound Care Center by Des Peres Hospital is using some of the most advanced wound care technology available and is setting the standard of care higher for treatment of wounds.
In addition to the hyperbaric chambers, the new center has infectious-disease management, physical therapy, occupational therapy, laboratory evaluation, nutritional management, pain management, diabetic education, radiology testing and wound debridement (removal of dead tissue) to address the patient’s total health. For more information, visit www.stlwoundcare.com.
Pressure ulcers, also known as bed sores, pressure sores, or decubitus ulcers, are wounds caused by unrelieved pressure on the skin. They usually develop over bony prominences, such as the elbow, heel, hip, shoulder, back, and back of the head. Pressure ulcers are serious medical conditions and one of the important measures of the quality of clinical care in nursing homes.
From about 2% to 28% of nursing home residents have pressure ulcers.
The most common system for staging pressure ulcers classifies them based on the depth of soft tissue damage, ranging from the least severe (stage 1) to the most severe (stage 4).
There is persistent redness of skin in stage 1; a loss of partial thickness of skin appearing as an abrasion, blister, or shallow crater in stage 2; a loss of full thickness of skin, presented as a deep crater in stage 3; and a loss of full thickness of skin exposing muscle or bone in stage 4. Clinical practice guidelines for pressure ulcers have been developed and provide specific treatment recommendations for stage 2 or higher pressure ulcers, including proper wound care.
Statistics from the CDC:
-
In 2004, about 159,000 current U.S. nursing home residents (11%) had pressure ulcers. Stage 2 pressure ulcers were the most common.
-
Residents aged 64 years and under were more likely than older residents to have
-
pressure ulcers.
-
Residents of nursing homes for a year or less were more likely to have pressure ulcers than those with longer stays.
-
One in five nursing home residents with a recent weight loss had pressure ulcers.
-
Thirty-five percent of nursing home residents with stage 2 or higher (more severe) pressure ulcers received special wound care services in 2004.
Data from the national nursing home survey, 2004, published in NCHS Data Brief, No. 14, February 2009.
If a hard-to-heal wound is not treated, it may get bigger and deeper over time. This may significantly increase the patient’s chances of infection, which if severe enough, may require hospitalization. If the tissue damage from infection is extensive, the patient may need surgery or amputation.
If your loved one has received improper care or you are not certain whether a nursing home has acted below the standard of care, contact Michelle Funkenbusch at 314-799-6602 for a free consultation. As a trial lawyer, Funkenbusch has been involved in many nursing home cases and has witnessed the lack of training of staff, the improper care, the lack of documentation of records, and the abuse that occurs regularly. A lawyer needs to be properly trained to read nursing home records. Contact Funkenbusch for more details about her extensive experience in this area.
© 2012 The Law Offices of Michelle M. Funkenbusch, LLC. All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.
Red Light Cameras… Here to Stay
Missouri Red Light Camera Review
The Creve Coeur City Council could hear an ordinance as soon as next week that would move to extend the city’s use of “Red Light” cameras.
As a lawyer, the MOST common question I am asked from friends and family is whether red light camera violations are enforceable. The answer usually depends on where you got the ticket.
A red light camera is a traffic enforcement camera that captures an image of a vehicle which has entered an intersection against a red traffic light. By automatically photographing vehicles that run red lights, the camera produces evidence that assists authorities in their enforcement of traffic laws. Generally the camera is triggered when a vehicle enters the intersection after the traffic light has turned red. Typically, a law enforcement official will review the photographic evidence and determine whether a violation occurred. A citation is then usually mailed to the owner of the vehicle found to be in violation of the law.
On August 29, 2012, red light cameras survived yet another class-action lawsuit in Missouri. A Jefferson County judge rejected a suit that aimed to prohibit the use of red light cameras in Arnold, which became the first Missouri city to deploy the cameras in August 2005.
In his ruling August 29, Judge Mark Stoll noted that the arguments of the defendants — the City of Arnold and camera company American Traffic Solution — were the “most persuasive.”
With this Arnold ruling, attorneys with the Simon Law Firm of St. Louis have now lost four decisions that sought to prohibit use of the cameras in Kansas City, Arnold, Florissant and Creve Coeur.
Despite at least a half-dozen legal challenges statewide, only two rulings have gone in favor of those opposed to the cameras.
In February 2012, a St. Louis Circuit Court judge ruled the city ordinance void. (That decision is under appeal.) In his ruling February 17, Judge Mark Neill upheld a partial judgment he made last May that found the city improperly enacted its red-light camera ordinance without enabling legislation from the Missouri legislature.
And in 2010 the Missouri Supreme Court held against the way Springfield enforced its citations.
For more information on the Creve Couer red light camers see: http://crevecoeur.patch.com/articles/red-light-cameras-seem-likely-to-stay
© 2012 The Law Offices of Michelle M. Funkenbusch, LLC. All Rights Reserved. These materials may not be reproduced in any way without the written permission of The Law Offices of Michelle M. Funkenbusch, LLC. This blog is designed to provide general information on the topic provided and is posted with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this post and the blog is prepared by a lawyer, it should not be used as a substitute for legal advice. If legal advice is required, the services of The Law Offices of Michelle M. Funkenbusch should be sought privately.
Another Open Container Bill Fails… No Surprise to St. Louis DUI Attorney
Drinking on The Move in Wentzville: Thoughts from a St. Louis DUI lawyer.
It is not shocking that Missouri (whose unofficial state wildlife is the “Busch”) is known for a highly laissez-faire approach to alcohol regulation. For instance, there is no state-wide law against drinking in public. You can even legally let your children drink. (See RSMO 311.310). I am not saying this is a good idea by the way. There is also no state wide law against open containers in the possession of passengers in vehicles. This pro-alcohol reputation, supported by a strong alcohol industry lobby, continues to grow based on a recent decision by the Board of Alderman in Wentzille. This is the second time in a few months that the alderman have voted down a proposed open container law supported by the local Police Chief.
The bill would have banned passengers in motor vehicles from drinking from, or possessing, open containers of alcoholic beverages while driving through Wentzville. Drivers are already banned from drinking by state-wide laws. The Chief argued that the proposed law is a way to catch drunk drivers “in the act”, as they would not be able to just pass a drink off to a passenger. One argument against the law is that this bill is municipal government overreach and that these laws should not differ from municipality to municipality.
A little over 3% of the cities across the state have municipal laws banning open containers in vehicles including, but not limited to:
Bates City, Bellefontaine Neighbors,
Cabool, Clarence, Clarkson Valley,
Columbia, Crystal City, Cuba, Elsberry,
Foristell, Harrisonville, Hermann, Independence,
Lamar, Lake Lotawanna, Lexington,
Liberty, Licking, Linn, Maryville,
Neosho, New Franklin, Normandy,
Osage Beach, Salisbury, St. Charles, St. John,
Trenton, Verona, Warson Woods, Weston.
This list includes those with bans as of 2005. There is no more recent comprehensive list that I can find at this time. This list of course means that in 96% of the cities in this state… open containers in vehicles are permissible if in possession of a passenger. Note, that if the alcohol is in the console or cup holder… a prosecutor will argue it is in the driver’s possession, not a passenger.
What About Buses?
There IS a state law against drinking intoxicating liquor of any kind in a passenger bus except a chartered bus. (See RSMO 578.315) .
If you are uncertain about the alcohol laws in your municipality, contact St. Louis DUI Attorney Michelle M. Funkenbusch to assist you, 314-338-3500.
Sources:
Roberts, J. (2005). Missouri State and Local Open Container Laws. Report 30-2005. Retrieved 7/12/12, from University of Missouri Columbia, Institute of Public Policy. Web site: http://ipp.missouri.edu/files/ipp/attachments/missouri_state_and_local_open_container_laws.pdf
http://www.moga.mo.gov/statutes/C500-599/5780000315.HTM
Read more about the Wentzville decision at: STLToday Article
Top Ten Things to Do When You Are Hit By a Car on Your Bicycle
Top Ten Things to Do After a Bicycle Accident from St. Louis Bicycle Accident Attorney
Cyclists are injured and killed by hit-and-run drivers every day. Today, a cyclist was killed while trying to cross the street after exiting a well known bike path in Fullerton, California. Police are searching for a black vehicle involved in a hit-and-run accident that left the bicyclist dead. Police said the man that was hit appeared to have come off a popular biking trail and was crossing the street. The vehicle fled the scene, and then the victim was hit by a second vehicle, which stopped. The bicyclist was rushed to a local hospital, where he was pronounced dead shortly after.
Here is a checklist to follow if you are hit while riding your bicycle and are still able to function. If you were not able to function at the time of the accident, or your loved one was killed, it is imperative you or your family contact an experienced bicycle accident attorney immediately. Make sure your family knows who you want them to call in an emergency. If you are a witness to an accident, please help the victim with the following top ten things to do after a cycling accident:
CHECKLIST FOR BIKE ACCIDENTS
1. Get out of the road to avoid being hit a second time; however, if possible, take pictures (or have someone else take pictures) before the bike or car are moved.
2. Get the phone numbers and names of all witnesses.
3. Make sure to remember what if anything the driver, passengers, and or witnesses admit or tell you about the accident.
4. Call the police immediately and make a police report. Do not let the driver talk you out of making a report.
5. Do not ignore your pain and blow it off. People are often hurt way worse than what they thought at the time of the accident due to adrenaline. Go to an ER or doctor immediately if you have any pain. If you do not document that you are injured in medical records, you have no case for personal injuries.
6. Ask to see the driver’s license and insurance information. Do not just let them write it down for you. Get the phone numbers to make a claim. Check the policy dates on the card to verify you have the correct insurance card.
7. Seek an estimate of your bike damage for repair and replacement value from a reputable shop like Maplewood Bicycle. http://www.maplewoodbicycle.com/. Do NOT try to fix it on your own without first getting the estimate.
8. Do not destroy anything that could be evidence such as a cracked helmut, torn clothing, bloody shoes, etc.
9. Do NOT give a recorded statement to the insurance company. They are NOT on your side and will try to trick you into saying something to use against you in court.
10. Call a bicycle accident attorney within 24 hours in order to preserve all evidence, to contact witnesses, to make sure the police have the correct story (in case a supplemental report is needed with your statement), and to let the insurance company for the driver know you are represented and cannot be bullied into a settlement that greatly undervalues your case.
Again, if you or your loved one are hit while cycling, contact Missouri Cycling Advocate and Bicycle Accident Attorney, Michelle M. Funkenbusch at 314-338-3500. If you would like a FREE hour presentation to your community group, athletic club, or children’s organization, on Missouri bicycle law and safety measures, please contact Michelle.
“Phone Blox” Invented by SLU Grad to Help Prevent Bus Accidents
St. Louis Bus Accident Lawyer Discusses Potential New Standard of Care for Bus Companies to Prevent Bus Accidents.
There is a new standard of care developing for bus companies to prevent bus accidents caused by their distracted drivers. Phone Blox is a product that connects to the ignition or transmission system of a bus. The driver puts their cell phone in a box that automatically locks when the bus is turned on or put into gear. As of 2010, there were 7,200 public transit agencies, operating 66,239 buses in the U.S., according to the American Public Transportation Association. That does not count school buses, taxis, or light rail systems that could also use Phone Blox.
Inventor, SLU grad Ginny Foster delivered prototype boxes of her bus accident safety invention in July 2010 to the Metropolitan Transit Authority of Nashville, Tenn. Later that year, the Nashville MTA won the 2010 American Public Transportation Association GOLD Safety Award for their innovative solution to thwart distracted driving, a problem every public transportation system in the nation is dealing with. Bus drivers, like every driver in Missouri, are required to use the highest degree of care in operating the bus. In addition, bus companies are required to use reasonable care in developing safety programs to prevent bus accidents. As the use of Phone Blox and similar systems become more widespread, there will be a greater degree of responsibility for public transit companies to keep up with the safety innovations or be subject separately to a suit for negligence when bus accidents occur. This could allow for punitive damages for willfully ignoring safety features that can save lives.
In addition, it is very possible this same technology is justified for use in tractor-trailers, which are 30,000 ton weapons on the road. Distracted driving is one of the number one causes of accidents in the United States. Any safety system that will limit use of cell phones while operating tractor-trailers should be standard in the trucking industry.
If you have been injured in a bus accident, you need a trial lawyer that is going to be “in the know” about how to prove cases of negligence against bus companies, not just the drivers. The Law Offices of Michelle M. Funkenbusch strives to research daily the law and safety developments that could affect her client’s bus accident cases.
SOURCE: St. Louis Business Journal by Amir Kurtovic, Reporter
Missouri cyclist killed in accident during charity ride
A 48-year-old bicyclist from Independence died Saturday after he was struck by a vehicle while riding along a rural route of a charity ride east of Buckner.
Michael D. Forbes was riding west shortly after 8 a.m. on U.S. 24 near County Road H when a westbound car struck his rear wheel, according to the Missouri Highway Patrol.
Forbes was riding the route of the Freedom From Cancer Ride, a charity event that started at 7 a.m. in Independence and extended to Lexington and back. Forbes wanted to start earlier than the official race time, so he was actually headed back to Independence as hundreds of other riders were still riding east, said Chris Pace, the event’s coordinator.
Forbes was alone, so other riders didn’t see the accident, Pace said.
Troopers still investigating the bicycle/car accident cited inattention by the 32-year-old driver as a cause. The driver told troopers he had glanced down at his dashboard. When he looked back up, it was too late to avoid hitting the cyclist, said Sgt. Collin Stosberg.
Troopers are going to subpoena cellphone records from the driver as a routine part of the investigation, Stosberg said.
Evidence showed Forbes was on the roadway, according to the Highway Patrol.
The victim and his wife, who was volunteering at the event, are well known and liked in the cycling community, Pace said.
“It’s tragic all the way around,” Pace said. “He was a good guy. He’d do anything for anybody.”
Cyclists know their hobby can be dangerous, Pace said, especially with multiplying distractions inside vehicles.
“All I can say is try to ride in a group,” Pace said. “Try to make yourself a bigger target.”
SOURCE: BY CHRISTINE VENDEL, To reach Christine Vendel, call 816-234-4438 or send email to cvendel@kcstar.com. Posted on Sat, Jun. 30, 2012 09:47 PM
Read more here: http://www.kansascity.com/2012/06/30/3684614/independence-cyclist-killed-in.html#storylink=cpy
If you are in need of a personal injury lawyer specializing in cycling accidents, Contact Michelle M. Funkenbusch, Missouri’s Advocate for the Cyclists.
Transportation-related bills from the 2012 legislative session passed and awaiting the governor’s signature
[UPDATE 8 JULY 2012: Bills signed or approved by Governor Nixon are indicated.]
A number of transportation related bills passed the Missouri General Assembly this year and are now awaiting the governor’s signature.
The Missouri Bicycle and Pedestrian Federation recently gave a summary of the bicycle and pedestrian related bills and issues that came up during this year’s legislative session. Now an even larger list–all of the significant transportation-related bills, whether or not they include bicycle or pedestrian provisions.
Almost all of the bills are ‘omnibus’ bills containing somewhere between a few and many different provisions. To see the full list of provisions, click through to the bill’s page. The list below points out only those provisions of special interest for bicycling, walking, or trails:
- SB 470 – Optional 3rd license plate for use when bike rack or other obstruction obscures the rear license plate (Ryan’s law)
- SB 568 – Cities are allowed to levy a transportation tax under 74.700 to 74.755 RSMO. The tax can be used for mass transit, roads, streets, bridges, airports, and planning. SB 568 adds “sidewalks, trails, and community-owned parking” to the list of allowed items for the tax.
- SB 607 – Allows billboards to be moved or removed under special rules when a stretch of highway undergoes construction.
- SB 611 – temporary permit tags; yellow light duration; move over law
- SB 665 – conveys certain real estate to MoDOT
- SB 719 – motorcycle training course exemption; use of state park roads by commercial entities (ie, bike rental, canoe rental)
- HB 1402 – Optional 3rd license plate for use when bike rack or other obstruction obscures the rear license plate (Ryan’s law); “moderate” billboard legislation requiring MoDOT to create regulations government digital signs; includes many other provisions
- HB 1504 – authorizing additional funding for Great Rivers Greenway District for trails, greenways, parks, and improvement of the Arch district in St. Louis City, St. Louis County, and St. Charles County; authorizing creation of a Trails and Greenway District in Jackson County and creation of a sales tax to fund trails and greenways. This is state enabling legislation–all taxes must be approved by voters in the respective counties before they become effective.
- HB 1807 [signed by governor 6 July 2012] – Designates the bike/ped path on the Heart of America Bridge in Kansas City as the “Bob Watts Memorial Bicycle & Pedestrian Bridge”. Bob was a pioneering bicycle and pedestrian advocate in Missouri and former MoBikeFed Chair.
- HB 2004 and HB 2005 [signed by governor 22 June 2012 with one minor line-item veto in HB 2004] – Appropriating funding for MoDOT.
- SCR 26 – Establishes the Joint Interim Committee on Transportation Needs to study the transportation infrastructure needs of Missouri
You’ll note that some provisions, such as Ryan’s Law, are included as part of two or more bills. This is a common legislative tactic–each bill the language is included in raises the odds of that language passing at least once–and helps the provision survive a veto if one or more of the large omnibus transportation bills is vetoed. So if a certain provision passes twice or more, it can only help and doesn’t hurt anything.
As an advocate for the protection of cyclists and pedestrians, I strongly urge you to support bicycling, walking, and trails in Missouri and work towards Complete Streets policies in Missouri that will help every community become safer and more inviting for walking and bicycling. Bicycling, walking, and trails are important for our health, for the livability of our communities, and for the economic vitality of our state as it competes on a national and international level. The governor has until July 14th to sign most of these bills.
SOURCE: Missouri Bicycle and Pedestrian Federation, Article Submitted by Brent Hugh on Thu, 06/07/2012 – 2:27pm
Local Bicycle Lawyer Attends Spin Class CLE
The Missouri Association of Trial Attorneys offered a spinning class with Continued Legal Education. The Missouri Bar Association requires lawyers to take 15 hours of continuing legal education courses each year. St. Louis lawyer Michelle M. Funkenbusch, 38, said she didn’t need the credits. She signed up because she’s training for an Ironman-distance triathlon and thought it would be fun. It turned out to be even more beneficial than she imagined.
“Your brain is woken up for an hour, the blood is rushing through your veins then you have all these attorneys come together and help each other with cases,” she said. “We’ll say, ‘Here’s an idea about my case, and it’s not refined or finished but what do you think?’ And they throw out ideas. I’m one of the youngest and to be in this room with these guys.” Lawyers earn 9 credit hours for “Spinning your strategy,” which consisted of an hour of spin/cycling class and an hour of round table discussion of pending cases.
For full article:
Summary of U.S. Report on Commuting by Bike and on Foot by Missouri Bicycle Accident Lawyer
The Status of Bicycling and Walking in the U.S.
Government officials working to promote bicycling and walking need data to evaluate their efforts. In order to improve something, there must be a means to measure it. The Alliance for Biking & Walking’s Benchmarking Project is an ongoing effort to collect and analyze data on bicycling and walking in all 50 states and the 51 largest cities. They have now prepared the third biennial Benchmarking Report which is 248 pages long. The first report was published in 2007, the second in 2010, and the next report is scheduled for January 2014.
WHERE ARE THE MOST NON-VEHICLE COMMUTERS?
According to the report, the top ten cities where the most people commute by bike or on foot are: 1. Alaska 2. Vermont 3. New York 4. Montana 5. Oregon 6. Hawaii 7. Massachusetts 8. South Dakota 9. Wyoming 10. Maine. The number one position, Alaska, indicates it is the state with the highest share of commuters who commute by bicycle or foot. The cities who ranked highest in commuting by bike and on foot are: 1. Boston 2. Washington, DC 3. San Francisco 4. Seattle 5. New York 6. Portland, OR 7. Minneapolis 8. Philadelphia 9. Honolulu 10. New Orleans.
Missouri ranked 40th out of the 50 states in the levels of commuting by bike or on foot.
This information comes from the 2007-2009 ACS Notes: This ranking is based on the combined bike and walk to work share from the 2007-2009 ACS. View graphs illustrating this data on pages 34 and 35 of the Benchmark Report.
WHICH IS THE SAFEST STATE FOR A COMMUTER BY BIKE OR ON FOOT?
This is difficult to determine, but one statistic to consider is the number of fatalities per population commuting by walking or biking to work. The arguably safest state based on fatality statistics is Vermont. The top safest states rank as follows: 1. Vermont 2. Nebraska 3. Alaska 4. Wyoming 5. South Dakota 6. North Dakota 7. Iowa 8. Maine 9. Massachusetts 10. Minnesota. See FARS 2007-2009 ACS 2007-2009. Note that this ranking is based on the fatality rate which is calculated by dividing the number of annual pedestrian and bicycle fatalities (averaged between 2007-2009) by population (weighted, or multiplied, by share of the population walking and bicycling to work). View these data on pages 56-62 of this report.
Illinois ranked in the top half of lowest fatalities/population commuting by bike/foot at 23rd,
but Missouri was in the 34th position.
The top twelve cities who ranked the safest based on the fatality statistics are as follows: 1. Boston 2. Minneapolis 3. Omaha 4. Seattle 5. Portland, OR 6. Washington, DC 7. New York 8, San Francisco 9. Philadelphia 10. Honolulu 11. Colorado Springs 12. Chicago. Kansas City, MO ranked 45th and St. Louis did not make the list because this report focuses on the 50 states and the 51 largest U.S. cities. Most bicycling and walking is in urban areas, and because of short trip distances, the most potential for increasing bicycling and walking is in cities.
Summary of Additional Facts From the Report
Bicycling and Walking Levels:
-
12% of all trips are by bicycle (1.0%) or foot (10.5%).
-
From 2000 to 2009, the number of commuters who bicycle to work increased by 57%.
-
In 2009, 40% of trips in the United States were shorter than 2 miles, yet Americans use their cars for 87% of trips 1 to 2 miles. Twenty-seven percent of trips are shorter than 1 mile, yet 62% of trips up to 1 mile long are by car. Residents of the largest U.S. cities are 1.7 times more likely to walk or bicycle to work than the national average.
Bicycle and Pedestrian Safety:
-
14% of all traffic fatalities in the U.S. are bicyclists (1.8%) or pedestrians (11.7%).
-
In the 51 largest U.S. cities, 12.7% of trips are by foot and 1.1% are by bicycle, yet 26.9% of traffic fatalities are pedestrians and 3.1% are bicyclists
-
Seniors are the most vulnerable bicyclists and pedestrians. Adults over 65 make up 10% of walking trips, yet comprise 19% of pedestrian fatalities and make up 6% of bicycling trips, yet account for and 10% of bicyclist fatalities.
Funding for Bicycling and Walking:
• States spend just 1.6% of their federal transportation dollars on bicycling and walking. This amounts to just $2.17 per capita.
Missouri was ranked 17th out of the 50 states in funding bicycling and walking.
This ranking is based on the per capita spending of federal funds by states and cities on bicycling and walking using a 5-year average (2006-2010). Data is based on funds obligated to projects in this period and are not necessarily the amount spent in these years. The number one position, again Alaska, indicates the state with the highest amount of per capita federal funding to bicycling and walking. View these data on pages 86-87 of this report.
Here are some additional facts about financial benefits from the extensive report:
Public Health Benefits:
• Bicycling and walking levels fell 66% between 1960 and 2009, while obesity levels increased by 156%.
• Between 1966 and 2009, the number of children who bicycled or walked to school fell 75%, while the percentage of obese children rose 276%.
• In general, states with the highest levels of bicycling and walking have the lowest levels of obesity, hypertension (high blood pressure), and diabetes and have the greatest percentage of adults who meet the recommended 30-plus minutes per day of physical activity.
Economic Benefits:
• Bicycling and walking projects create 11-14 jobs per $1 million spent, compared to just 7 jobs created per $1 million spent on highway projects.
• Cost benefit analyses show that up to $11.80 in benefits can be gained for every $1 invested in bicycling and walking.
Download the complete report at: www.PeoplePoweredMovement.org/Benchmarking
Michelle M. Funkenbusch is a cycling advocate and Missouri trial attorney specializing in representing cyclists who have been injured in accidents. Please contact her if you wish for her to speak with your group about the benefits of cycling or if you have been injured in an accident. 314-799-6602. mmf@SaintLouisLegal.com
“Going the Distance”: Pennsylvania Passes “Four Foot” Bicycle Passing Law.
Missouri Cycling Advocate on the New “Four Foot” Passing Law in Pennsylvania.
There is no IQ test required to drive a car or ride a bike… but seeing accident after accident in St. Louis and the surrounding area in Missouri, I am glad to see the continued nationwide movement to pass “safe passing bills”. Every cyclist knows how it feels to have a car, truck or bus pass too close for comfort. I know many who have been hit by cars and survived to tell their tale, but not all. How many cyclists have experienced the “red pickup truck” cursing at them as they are passed on a lonely country road wide enough for all to be happy. Or how about the typical teenage girl in the Dodge Neon, texting her girlfriends, who turns straight into a cyclist. Motorists often misjudge the space needed due to inattentiveness, lack of the expectation of a cyclist, and lack of experience driving by cyclists. To make roads safer for bicyclists and other vulnerable road users, many states have passed “safe passing bills” to provide bicyclists the protection of law from passing motor vehicles.
On Tuesday, January 24, 2012, the Pennsylvania Senate voted to pass HB170, a bill that would require motorists allow a minimum of four feet when passing a cyclists on the roadway. If you review the bill, note that it refers to bikes as pedalcycles… not to be confused with motorcycles. The bill passed the Senate in a 45-5 vote and is now awaiting signature by their governor so it may become law. Once signed into law the Pennsylvania bill will require that:
- Bicycles in Pennsylvania must be operated in the right hand lane, or as close as practicable to the right-hand curb or edge of roadway.
- This does not apply to a bicycle using any portion of the road due to unsafe surface conditions.
- Motorists must overtake a bicycle with no less than four feet between the vehicle and the bicycle and at a “prudent reduced speed”.
- No turn by a motorist may interfere with a bicycle proceeding straight.
Here is the link if you would like to read the bill:
The “four foot” law is significant in that most states that have passed safe passing laws have limited it to three feet. Three foot laws have come under scrutiny for still being too narrow. Some driver’s education handbooks instruct to give 6 feet of room when passing a cyclist.
No Three or Four Foot Law in Missouri: Must Pass at “Safe Distance”
Insurance Company lobbyists have continued their success in Missouri in blocking a three or four foot passing laws. They fear a rise in claims if a clear-cut law is passed. Currently, Missouri has no specific number of feet that you must overtake a bicycle, but there is a specific vehicle-overtaking-bicycle law. Overtaking law, “304.678. Distance to be maintained when overtaking a bicycle.”, (here) states “The operator of a motor vehicle overtaking a bicycle proceeding in the same direction on the roadway, as defined in section 300.010, RSMo, shall leave a safe distance, when passing the bicycle, and shall maintain clearance until safely past the overtaken bicycle.” (italics added) Penalty: “Any person who violates the provisions of this section is guilty of an infraction unless an accident is involved in which case it shall be a class C misdemeanor.”
If you have any questions about Missouri bicycle accident law, contact Michelle M. Funkenbusch, St. Louis Trial Lawyer and Cycling Advocate, 314-799-6602. Michelle provides free bicycle law education seminars to the community, high schools, scout troops, and adult social organizations. If you would like Michelle to speak to your group, please do not hesitate to contact her.
