Missouri Injury Law Blog

This past Wednesday, an jury returned a $6.2 million medical malpractice personal injury verdict against Shands Hospital in favor for the family of a University of North Florida Business School professor who died in 2002 from complications arising after a gastric bypass surgery. He was only 41 and is survived by his wife and 10-year-old son.

There were no complications or medical malpractice during Mr. Fine’s operation, but 5 days after he developed alarming breathing problems. His medical provider ordered a CT scan of his lungs. En route, he informed the CT technicians that he felt like he was dying and said that he would have trouble breathing if he lay flat. The technicians apparently disregarded this information and strapped him down to the CT table. He had to stay in this position for an undisclosed amount of time while the technicians prepared the scan. During the 4 minute CT scan, Fine died.

The medical malpractice and wrongful death victim's widow filed a wrongful death and medical malpractice lawsuit against Shands Hospital. Her wrongful death lawyer stated "They did not check his oxygen saturation levels, nor did they call in a radiologist to check Mr. Fine". The cause of Fine's death is listed as cardiac arrhythmia – which is when a heart stops because of lack of oxygen.

The lack of appropriate equipment in the scanning room – not to mention the lassitude of the medical staff - was the cause of this regrettable and preventable death resulting from medical malpractice.

Missouri wrongful death settlement and Missouri medical malpractice settlement by St Louis Personal Injury Lawyer Ben Sansone - St Louis Missouri Wrongful Death Settlement 4.5 Million.

A Kansas City woman and Missouri premise liability personal injury victim, sustained a fractured foot and dislocated shoulder when she fell from a newly constructed smoking deck at the Green Duck Lounge. The bar had recently built the deck off the rear of the building in response to the smoking ban on indoor spaces. As she walked down the five concrete steps to re-enter the bar, she tripped and fell on what appeared to be, uneven steps. There was no handrail for her to grab onto.

Her serious Missouri personal injury required surgery for a torn rotator cuff, the use of a wheelchair, and 12 missed weeks of work. Boswell hired a Missouri Personal Injury Attorney who learned that the bar never acquired a permit to build the deck. “Our architect said had they done it, the inspector would have said, ‘You’ve got to put handrails in there,’” the Missouri personal injury lawyer said. The bar ended up paying $225,000 to settle the Missouri personal injury suit - $73,437 for medical care and $11,127 for lost wages.

Currently, St Louis personal injury law firm, Sansone Law, is representing an injured client in a very similar case. a restaurant patron and now personal injury victim in St Louis Missouri, slipped and fell while visiting a St. Louis restaurant. The restaurant created an unreasonably dangerous condition by positioning the beer taps in such a way that the overflow cannot help but run into a heavy traffic area. This area was not marked nor was any other preventative measures taken. As the client passed by this narrow traffic area, she slipped on beer, which had overflowed from the tap, and fell hitting her head quite hard on the polished concrete floor. This St Louis injury client has sustained a serious head injury and is still undergoing medical treatment as a result.

Restaurant/ bar owners owe the public the highest degree of care to keep their place of business in a safe condition – which entails not only regular inspections but also, a basic general awareness. Failure to comply with this duty is negligence and makes a business owner legally liable for any personal injuries sustained as a result of such condition.

Missouri Lawyer Weekly article about Missouri Personal Injury Settlement from Slip and Fall at Bar

St Louis Personal Injury Lawyer Ben Sansone Missouri and Illinois Personal Injury Verdicts and Settlements

For years under Missouri workers compensation law that the injured employee's sole remedy is to make a Missouri work comp claim. Meaning that they cannot also sue the co-worker that may have been negligent in causing the injury to the worker. That was the give and take of work comp law in Missouri, negligence or legal liability does not need to exist meaning an injury gets compensated regardless of fault, but in exchange the amount of compensation is limited by work comp reimbursement rates and charts depicting value in weeks for certain body parts and injuries.

As many Missouri personal injury victims know, our former governor Matt Blunt tried to take personal injury victim's rights completely away in 2005, he passed sweeping tort reform including strict construction of work comp laws. Well, this has now backfired to a certain extent as the strict construction approach to the Missouri work comp laws has opened up co-worker liability, meaning more insurance coverage and remedies for an injured worker in Missouri under the work comp laws.

The case opening up the road to Missouri co-worker liability in work comp claims is Robinson v Hooker, WD 71207 (Mo. App. 8-3-10). The court reversed a lower court's order dismissing a personal injury negligence lawsuit filed after the injured worker settled his Missouri worker’s compensation claim.

Prior to this case co-worker liability was limited under Badami v Gaertner, 630 S.W.2d 175 (Mo. App. 1982), allowing immunity for co-workers unless the injured worker could prove “something more” beyond negligence. Basically, no co-worker liability unless unless there was proof that a a co-employee purposefully or dangerously caused or increased a risk of injury.

Based on this ruling, if you settled a Missouri work comp within the last five years and believe that a co-worker was negligent in causing your injury you may now have more rights and be able to file a Missouri personal injury lawsuit against your co-employee and thus reach the employers liability insurance meaning more compensation for your injuries. Call St Louis Work Comp Lawyer Benjamin Sansone for a free consultation regarding your Missouri work comp claim.

In cases wherein the injured worker is not an employee they can go straight to a Missouri personal injury lawsuit against the at fault party without being held in worker's compensation court. See Missouri Personal Injury Settlement from Work Place Injury

Around 10:15 this morning 2 people were killed and 40 plus injured from what the Missouri Highway Patrol is calling a Missouri chain-reaction automobile accident on I-44 near Gray Summit. As a semi truck cab – no trailer attached – neared a slowed convergence area, caused by an approaching construction zone, a GMC pickup truck slammed into the back of the cab. The normal speed limit for that area is 70 mph.

Behind the pickup truck two school buses carrying 8th to 12th grade band students were en route to Six Flags for their annual school trip. The first bus carried the female students, while the second bus carried the male students. The driver of the first bus states that she did not see the two vehicles stopped and ran completely over the GMC and up onto the cab of the semi truck – as shown in the picture below. The second school bus then crashed into the back of the first bus.

The female driver of the GMC truck and one female student was killed, while more than 40 more were transported to local hospitals for minor injuries. Two students, aged 16 and 13, are now in stable condition. At this time, no other information is available regarding the condition of the student passengers.

This stretch of highway has seen at least 19 Missouri motor vehicle accidents with 33 fatalities between 2000 and 2007. Most of the Missouri car accidents occur near the Six Flags exit lanes on I-44. See devastating St Louis Missouri truck accident involving family of five as one of many examples. Whether it is defective roadway planning or driver inattention, this area has seen more than their fair share of fatalities.

This is an ongoing and tragic story and the personal injury victims and their families are in our prayers.

St Louis News Video Reporting on I-44 Truck / Bus Accident

The St. Louis dispatch recently had an article exposing the near impossible task of reviewing a doctor’s “resume” or finding any detailed information on Missouri medical malpractice cases they were involved in or if they have any reported medical errors to any supervisory board. Without stepping a toenail on the proverbial soap-box or invoking even a slight stretch of the imagination, we can see where this is something particularly important to patients awaiting surgery. See Serious Medical Errors, Little Public Information.

It began as an investigation into a specific 2007 surgery where a doctor, from DePaul Health Center, removed the wrong kidney. The reporter began his research at, what is implied to be, a typical starting point for these types of things. As he asserts, one would think a mistake of this size would have many different agencies involved. Not so. Here is a list of all the agencies he contacted regarding this incident: Joint Commission –who accredits hospitals, the Missouri Courts, Missouri Division of Insurance – in search of the malpractice database, National Practitioner Data Bank – which states what doctors paid malpractice claims, Missouri Department of Health and Senior Services – who investigates errors at hospitals, Missouri Board of Professional Registration for the Healing Arts – which disciplines doctors, and finally DePaul Health Center itself.

Not one of these agencies had a clear description of what happened, nor did they list who the specific doctor was that botched the surgery. Each agency would remove any identifiers before releasing the information – which kinda defeats the purpose of the request - or they simply would not answer the question at all. This is the only information the reporter was able to obtain: there was a negligent incident – not necessarily the one in question and there was a Missouri Medical Malpractice Lawsuit payout of $1.7 million – not necessarily to the patient in question. Any other information was too broad to even try to associate with this medical malpractice case.

In November 2008 Olena and Shari Novak, a mother and her adult daughter, were the victims of a head on collision. The car accident caused serious and permanent personal injury, including permanent brain injuries to the daughter and a broken neck, among other personal injuries, to the mother. The vehicle that struck them was operated by 18 year old Nicole Fisk, Pizza Hut delivery driver. The negligent driver suffered only minor injuries.

As presented at the car accident personal injury trial, Fisk had a seizure while driving, blacked out, and hit the Novaks. Injury lawyers for the Novaks filed a lawsuit against Fisk and Pizza Hut. The driver was later dropped from the injury lawsuit. Novak’s personal injury attorneys contend that Pizza Hut was responsible for assessing whether or not Fisk was a competent driver before putting her on the road and therefore is, ultimately, culpable for the accident and resulting personal injuries to the victims.

A key point to this particular case is that Pizza Hut asserts their employee was not diagnosed with seizures until after the accident and did have the qualifications to drive for the company – having a valid driver’s license, clean driving record, her own vehicle and auto insurance.

One attorney for Pizza Hut, James Yukevich, argued that Fisk had been to a doctor several times prior to the accident, complaining of “staring spells, trouble breathing, and at times unresponsiveness.” At no time was she diagnosed with epilepsy - until after the accident.

Personal injury plaintiff attorney, John Gomez, says that Pizza Hut is only shifting “blame for its negligence to the doctors who treated Fisk and the state DMV” which issued her a license. He purports that the California DMV sets a minimum standard for California drivers; as such, Pizza Hut should have done more to ensure that Fisk was a safe and suitable driver.

My cooking barely sustains life so we have a lot of takeout delivered to our home. I started thinking back on all of our deliveries – all the way back to yesterday - and realized that beyond our faithful and beloved Chinese delivery man, I rarely even speak to these guys and gals beyond the required four words: thank, you, very, much. I truly don’t care if they can tell a good joke, if they respond appropriately to another coworker when he/she continues to make mistakes on the job, or if they are even able to formulate a complete thought. I do care, however, if they have a medical condition that would heighten the risk of them hitting my child, who is forced to play in the street since moving to the city, or my car, which still has a hefty bank loan attached to it.

I wanted to see if Pizza Hut asked - as most employers must these days - if there were any medical reasons why this would-be employee could not perform the position’s required tasks. So I submitted my application to Pizza Hut. I went through endless pages of personality questions set up to weed out the non communicative, anti-team player and possible psycho, but not one question on the actual physical ability to perform the job. They did ask for permission to run a DMV background – so that is something.

Persona Injury Plaintiffs awarded 10.8 Million against Pizza Hut.

Contact Ben Sansone - St Louis Mo car accident lawyer and brain injury lawyer

Laparoscopic Gallbladder Surgery, medically known as a Laparoscopic Cholecystectomy and often abbreviated as Lap Choli, is a surgical procedure that is performed through several small incisions in the abdomen and using surgical probes (laparoscopes) to perform the surgery to remove a problem or diseased gallbladder. Gallbladder Removal Surgery Details.

Unfortunately, some doctors performing these procedures are not proficient in the laparoscopic techniques, they may do many surgeries without any major complications or medical negligence, however, eventually their lack of skill and risky approach will result in a serious personal injury complication or wrongful death constituting medical malpractice in Missouri and under the medical standard of care.

Biliary injury is the most common reason for medical malpractice in gallbladder removal surgery. This is caused by the surgeons lack of knowledge or attention to the varying anatomy of the gallbladder and the surrounding arteries and ducts.

Prevention of gallbladder removal surgery malpractice from biliary injuries (injury to the bile ducts) requires the doctor to perform meticulous dissection so that only the ducts, arteries,and other structures that have been unequivocally and conclusively identified are divided, clamped, and cut. In my experience as a medical malpractice lawyer in St Louis Missouri, this would prevent most serious complications, injuries, and deaths related to gallbladder removals / lap cholis.

It is well known in the medical community that it is fairly common that different patients arterial and ductal anatomy will vary, and thus a doctor cannot "shoot from the hip" and do a simple quick dissection and cut the first duct that appears to by the cystic duct. It is medical malpractice when this approach leads to the cutting or serious injury of the common bile duct or hepatic artery, which can lead to the wrongful death or serious personal injury of the patient.

Currently our St Louis Personal Injury / Medical Malpractice Law Office is handling Gallbladder Removal Malpractice and Wrongful Death Cases - If you need a Personal Injury Lawyer in St Louis Missouri please call Personal Injury Lawyer Ben Sansone (314) 726-1817.

Before you consider appealing a court decision, you should know about appeal bonds. They exist as a deterrent to frivolous appeals. As a type of surety bond, an appeal bond requires the party filing the appeal to pay the cost of the original judgment—if the appeal fails—and costs of appealing the ruling.

Essentially, surety bonds are three-party agreements between a surety company, a principal (the entity doing the work) and the obligee (the entity requiring the bond). Surety bonds help ensure that all applicable laws and regulations are followed, and act as a way to seek economic redress for those harmed.

Since both plaintiffs and defendants can appeal a decision, any party may be subject to purchasing a bond required for an appeal. Surety and insurance companies sell surety bonds in Missouri, and act as third parties between the court and appealing party. Most importantly, they guarantee that the court will be paid for the original judgment if the appeal fails. The cost depends on the first ruling of the court, and likely will cost the amount from that ruling plus interest and court costs.

Appeal bonds also protect the legal system in another way. When a party cannot pay a court-ordered sum, filing for an appeal gives them time. But filing an appeal that is time consuming but sure to be unsuccessful loses its luster thanks to appeal bonds. With the added cost of appealing and the original judgment fees, appeal bonds keep defendants and plaintiffs from filing useless appeals.

For example, when a defendant in a personal injury law case loses the judgment and owes a large sum to the plaintiff, they might consider filing an appeal simply to postpone paying the court-ordered amount. To file the appeal, the defendant must buy an appeal bond from surety. If the appeal is unsuccessful, the defendant must then pay the sum defined by the first proceeding and additional fees for the filing an appeal.

The party for whom the court ruled in favor gets a cushion from appeal bonds, too. If a losing party goes bankrupt during the appeals process—and therefore cannot pay its legal debts—the appeal bond ensures recompense to the winning party. If the defendant goes belly up while the court considers the appeal, the plaintiff still receives its payment as mandated by the appeal bond.
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GUEST AUTHOR: Matt Bruns - matthew@suretybonds.com

Have you ever heard that you’re more likely to be involved in a car accident than in a plane crash? If you have, you’re not alone. It seems to be common knowledge that driving a car is risky business. However, as awareness of the dangers of driving has increased, important steps have been taken to reduce those dangers. As a result, fatality and injury rates have improved substantially, helping the automobile industry to rehabilitate its safety image. With cars on the road to causing fewer injuries, another personal injury issue is on the rise: motorcycle accidents.

Causes of Recent Increases in Motorcycle Injury Frequency

According to the U.S. Department of Transportation, motorcycle accidents accounted for 13% of all traffic fatalities in 2007, and over 36,000 motorcyclists were killed between 1998 and 2007. Between 2000 and 2010, the percentage of traffic fatalities resulting from motorcycle accidents has risen by 123%. This drastic change can be explained by several factors:

• Increased popularity and purchase of motorcycles
• Heavier traffic in urban areas due to population increase
• Riding a motorcycle without DMV endorsement
• Drinking and riding
• More warm (motorcycle-friendly) weather throughout the year.

Prevention of Motorcycle-Related Injuries

Like car accidents, motorcycle injuries and fatalities can be prevented when riders make the effort to adhere to some simple safety principles. Motorcycle riders can:

• Be conspicuous with clothing and reflectors on bikes
• Ride defensively by keeping an eye out for potential risks posed by other vehicles
• Keep alcohol out of the equation
• Avoid speeding and exercise extra caution on undivided highways.

Since over half of motorcycle fatalities involve passenger vehicles, the general population of automobile drivers should also take responsibility for the rise in motorcycle injuries. It’s easy to brush off motorcycles because of their relatively small size, but they do share the road with passenger vehicles and must be treated as such. Motorists can help prevent motorcycle personal injuries by watching for motorcycles and by actively recognizing them as motor vehicles.

Steps to Resolution of Motorcycle Injury Issues

If you’re a motorcycle rider and have been unfortunately involved in an accident, there is help available to you. Many personal injury attorneys, including St Louis Injury Lawyer, Ben Sansone, have substantial experience with a variety of cases, including motorcycle accidents.

The U.S. government is also taking steps toward resolving the motorcycle injury issue, as reflected in Department of Transportation Action Plan to Reduce Motorcycle Fatalities, released in October of 2007. This plan introduces new national safety and training standards, measures to prevent counterfeit helmet labeling, a focus on motorcycle-specific road improvements, training for law enforcement officers to help them spot unsafe riders, and a broader public awareness campaign on motorcycle safety.

The government’s decision to address the increasingly urgent motorcycle injury issue with practical measures is a growing source of support for individual motorcycle riders. Causes of these injuries are being used to create prevention solutions with an ultimate goal of resolution.

Bio: Alexis Bonari is a freelance writer and blog junkie. She is currently a resident blogger at onlinedegrees.org, researching areas of online degree programs. In her spare time, she enjoys square-foot gardening, swimming, and avoiding her laptop.

In October 2008 a St Louis personal injury victim and carpenter working on a St Louis Missouri residential two-story home that was under construction in St Louis County. On that same day a negligent construction worker and roofer who was an employee of St Louis based Allen Roofing & Siding was on the roof of that same residential house installing shingles.

At some point in the afternoon, while my St Louis personal injury client was walking out of the front door of the house, a negligent roofer threw a long and heavy “toe board” from the tall second story roof, that board speared my client directly in the head, giving rise to serious injuries and a St Louis Missouri personal injury claim as well as a Missouri worker's compensation claim. The toe board is heavy, 14 feet long, and consists of two 2x4s tacked together, the carpenter immediately suffered severe personal injury, collapsed to the ground in a pool of blood, and went into seizures.

See pictures below depicting the hard hat, toe board, and area of the house showing how high up the roof is.

My personal injury client suffered a severe head and neck injury, has ongoing post traumatic brain injury symptoms, and had several teeth knocked out requiring a dentist and oral surgeon. The carpenter's medical bills for treatment of his injuries are $66,070.

Allen Roofing and the roofer are liable for these injuries. The roofer negligently and recklessly tossed the toe board without any consideration for where it would land and who would be there. The carpenter was walking out the front door where a walkway path of plywood sheets was clearly marked and any reasonable person would expect people to walk on a construction site. Moreover, there were multiple other area the toe boards could have been dropped, as opposed to recklessly thrown, in the back and on the sides of the house where walkways were not established.

In addition to the claim against the roofer, my St Louis personal injury client also had a St Louis Missouri Work Comp claim as the injury sustained occurred at work. The St Louis work comp insurance carrier paid total benefits of just under $100,000.

The 3rd party personal injury claim against the roofer and his employer settled for $400,000.00 and thus a combined St Louis personal injury and worker's compensation settlement of just under $500,000.00.

St Louis Personal Injury Lawyerr Ben Sansone represents the victim of a motor vehicle and bicycle accident wherein the driver of the car failed to yield to the cyclist in a designated bicycle lane and hit him with the front end of her truck.

The St Louis bicyclist suffered from bruises and abrasions and a dislocated shoulder. He received medial treatment at the emergency room and had to undergo shoulder surgery to repair a torn labium.

The cyclist's total medical bills we about $40,000 and he missed several months of work causing about $20,000 in lost wages.

In this case, St Louis personal injury lawyer Ben Sansone was able to make claims under multiple insurance policies which allowed him to secure several settlements for the personal injury victim of the St Louis bike accident totaling in excess of $200,000.00.

Extensive experience in the Personal injury field in crucial for investigating and seeking out all potential insurance policies that may cover an injury. Oftentimes many people stop with just the first policy. CONTACT: St Louis Missouri Personal Injury Law Firm - Sansone Law at (314) 726-1817

As previously discussed on this blog and on behalf of an anonymous victim, St Louis personal injury lawyer Ben Sansone is pursuing personal injury claims of invasion of privacy seeking compensatory and punitive damages against Jack Eigles, as well as various claims against Corporate Cash Flow Solutions. See Missouri Injury Lawyer Blog entry

Recently, Jack Eigles was convicted of three counts of Felony invasion of privacy and sentenced to 120 days shock jail time, 5 years probation, with 4 years jail time possible if he fails to complete probation. See Article Detailing Plea and what transpired in court

St Louis West County Journal Article discussing St Louis Personal Injury Lawyer Ben Sansone's involvement with the civil case.

Article by Erin Mace - Sansone Law, Staff

Above is a map showing each state’s current ban on text messaging while operating a motor vehicle. As you can see, more states are restricting all phone use while driving. 23 states and the District of Columbia ban all drivers from texting, while only 8 states ban the use of phones by novice drivers for any purpose – talking or texting. Novice drivers are defined as younger than 18 or 21 years of age, depending on the individual state.

One of the largest personal injury wrongful death verdicts, in a texting-while-driving wrongful death case, was recently handed down in the state of Texas. The defendant made 7 phone calls and sent 15 text messages during a span of 45 minutes before the accident took place. The family of the auto accident wrongful death victim is hoping to use this incident as a platform to make texting while driving illegal in the state of Texas. As you can see from the map above, they already have some restrictions on this – mainly directed towards novice drivers.

Missouri is currently one of the 8 states to have a ban on texting while driving for drivers 21 years of age or younger. If caught, they will be charged and given a fine not to exceed $200. Missouri is also working on a new bill (HB1202) that was first introduced in December of 2009. This bill will ban all drivers – no matter the age – of texting or talking on cell phones, without a hands free device. As the bill reads, “A violation of this section shall be deemed an infraction and shall be deemed a moving violation for purposes of point assessment under section 302.302, RSMo.” The fine will also be $200. The only exceptions to this law would be if a driver is dialing a number in preparation of making a phone call or setting a GPS feature on the phone. Also, the provisions will not apply to a person operating:

(1) A motor vehicle on a private or public gravel road;
(2) An authorized emergency vehicle; or
[(2)] (3) A moving motor vehicle while using a hand-held electronic wireless communications device to:
(a) Report illegal activity;
(b) Summon medical or other emergency help;
(c) Prevent injury to a person or property; or
(d) Relay information between a transit or for-hire operator and that operator's dispatcher, in which the device is permanently affixed to the vehicle.

The bill has been referred to the Public Safety Department and has yet to be calendared for a hearing. The proposed effective date is August 8, 2010. Rep. Jeff Roorda, D-Barnhart is in favor of the proposed revised law. However, as he stated, "The current law is incredibly subjective. Not only does (did) an officer have to look at a moving vehicle and determine whether the driver is 21 years of age or younger, but they must also determine if the device is being used for a prohibited or allowable use."

While it is clear that texting while driving is extremely dangerous, do we really need to add another law that will be almost impossible to enforce? Here are a few current laws that keep Missouri’s finest busy implementing and kinda cover the effects of texting while driving: failure to drive in a single lane, improper passing, impeding the flow of traffic, following too close, failure to stop at stop sign, speeding, and so on ad nauseum – not to mention vehicular manslaughter. The Missouri Revised Statue 304.012. states, “Every person operating a motor vehicle on the roads and highways of this state shall drive the vehicle in a careful and prudent manner and at a rate of speed so as not to endanger the property of another or the life or limb of any person and shall exercise the highest degree of care”. Any person who violates this provision is guilty of a class B misdemeanor, unless an auto accident is involved, then is becomes a class A misdemeanor.

Texting/Talking while driving was difficult enough to enforce when the law was directed to young adults under the age of 22 – some lucky souls just have good genes and look young. But now, with exceptions such as: dialing a phone number to make a call; receiving a call; and setting GPS locators, it becomes almost impossible to make such discretionary decisions on the road. Why do texting-while driving wrongful death cases deserve more headlines, more punishment, and implementation of a new law than say….application of makeup-while driving as a basis for a wrongful death case? They both, technically, fall under the same definition and should be tried the same.

Ann Spradling, et al. v. SSM Health Care St. Louis, SC90613, has challenged the Missouri medical malpractice provision that requires a plaintiff to a file written opinion from a doctor “practicing substantially the same specialty” as the defendant doctor. This means until a doctor has reviewed all the records and signed an affidavit saying there was negligence, you cannot file a lawsuit because it will be dismissed. Doctors are the only class of defendants who get this special treatment. As a Missouri medical malpractice personal injury lawyer I personally do not mind the provision requiring a certificate of merit. However, the requirement that the expert is from the same specialty puts an extra burden, as many doctors are qualified to give opinions even though they are not denoted as a specialist in a certain area. The Plaintiff in the Spradling case is claiming that the higher standard to claim Missouri medical malpractice hampers her right to a jury trial.

The second case, Edith C. Deck v. Delmar Teasley, SC90628, deals with an issue we have discussed in this Missouri injury law blog before regarding the amount of medical bills admissible as damages at trial; the amount billed by health care providers or the reduced amount an insurer pays to satisfy the bill. Again, this is a constitutional argument of a right to a trial by jury.

In a recent St Louis Wrongful Death Verdict, a family will not be able to collect on the $2.4 million dollar St Louis Missouri wrongful death judgment against a local dentist, at least not against any Missouri malpractice insurance coverage. The St Louis wrongful death victim, Henry Johnston, underwent sedation at James Bubenik’s dentist office and died four days later from complications. It should be noted six months prior to Mr. Johnston’s visit, another patient died from the same complications. Apparently, during the trial, the Johnston family somehow decided to or stipulated to go after Mr. Bubenik’s insurance company only. Medical Protective Co., the insurance company, filed a lawsuit against the Johnston family, arguing that it was not liable for any Missouri medical malpractice judgment “because the dentist didn’t cooperate with the insurer in preparing his defense.” Bubenik had repeatedly asserted his Fifth Amendment rights, refusing to testify in court or depositions. U.S. District Judge E. Richard Webber said this refusal nullified the medical malpractice insurance company’s duty to provide coverage to Bubenik. The 8th U.S. Circuit Court of Appeals affirmed this decision – unanimously. Attorneys for the Johnston’s family argued that “the language of the general cooperation clause was ambiguous because it didn’t specifically require an insured to give testimony.” The 8th Circuit rejected the argument.

There is much more to this case than what is divulged in the different articles written about this. However, it is apparent that the defense had a good hand delivered to them and played it well. From the aces literally handed to them from the Plaintiff’s attorney during the trial, to the doctor’s sleight of hand, and finally the Circuit Court of Appeals decisions, the defense bluffed their way to a $2.4 million win that was justly due to the deceased’s family.

I encourage you to read this wrongful death decision and realize just another reason why you need to find an experienced and skilled Missouri personal injury attorney to represent you in a wrongful death case. It distresses me that the case I mentioned above was lost because of “bad lawyering” or inexperience. Sometimes a “friend-of-a-friend” or the guy that helped you out of a speeding ticket isn’t your safest bet.