Missouri Injury Law Blog

Injuries due to dangerous conditions are referred to as premise liability cases, and the distinction between a premise liability case and a medical malpractice case is generally obvious, however, if the dangerous condition on the property happens to be a healthcare providers property, they may try to argue it is technically a medical malpractice case, thus invoking a whole set of laws specific to healthcare providers that make it more difficult and expensive for an injury victim to pursue a personal injury cause of action. See What Constitutes a Healthcare Provider for Injury Claims?

Particularly, in order to pursue any medical malpractice case in Missouri you must have an expert that is in the same general field of medicine, usually an MD of some sort. That expert must sign an Affidavit of Merit under RSMo 538.225 stating that more likely than not, and within reasonable degree of medical certainty, the defendant breach the standard of care. For general negligence claims, such as auto accidents, slip and falls, etc ... this is not required.

The Missouri cases that have dealt with the issue of whether the provisions of §538.225 apply to a given case have focused on two (2) general areas of inquiry: 1) was the defendant at issue acting as the injured individual's health care provider at the time of the acts or omissions at issue - i.e., what was the true relationship between the plaintiff and the defendant at the time; and/or 2) was the defendant providing a health care service to the injured individual at the time of the acts or omissions at issue - i.e., was the act or omission at issue a health care service done as part of that provider-patient relationship.

For example, in Morrison v. St. Luke's Health Corporation, 929 S.W.2d 898 (Mo.App. 1996). a patient that was in the process of being discharged from St. Luke's Hospital fell over a briefcase that had been left in the hospital hallway and sustained injury. In finding that a 538.225 affidavit was not required, the Court of Appeals found that the patient's claim, despite the fact that the plaintiff was actually then still a patient of the hospital, did not arise out of the provider-patient relationship, but rather the owner/occupier-entrant relationship.

Another case, Meekins v. St. John's Regional Health Center, Inc., 149 S.W.3d 525, 533 (Mo.App. 2004). A hospital employee was required to undergo a drug screen test at the hospital as part of her employment, and she ultimately alleged a general negligence claim against the hospital claiming that the drug screen test had been performed incorrectly. In finding that the healthcare affidavit was not required, the Missouri Court of Appeals "determine[d] that a drug screen test performed by a hospital is not a health care service if such is not performed within the confines of a physician/patient relationship."

So even if an injury occurs on a medical providers premises and even sometimes when you were there fore medical treatment, medical malpractice laws do not apply in all situations involving healthcare providers.

I personally see it all the time and in my experience as a St Louis med mal lawyer, most people are not surprised that doctors and nurses cover each other's backs to conceal mistakes and surgical errors even when the patient is severely injured or dies. Before I continue with this article, I must say that the vast majority of doctors and nurses are good, competent, and honest people. But when errors occur at the hands of the minority of incompetent medical care providers, it is not uncommon for there to be a cover up. Most healthcare providers justify the cover up, as to them the doctor or the nurse did not make the mistake on purpose and their intentions were to help the patient. They also feel that if a medical mistake is a "known complication", that automatically means they did not do anything wrong. Well.... as I like to say to a jury..... it is a "known complication" of driving a car that someone may be negligent, run a red light, and cause a car accident; that does not mean the driver who was not paying attention and who caused the "known complication" was not negligent. The same applies to healthcare providers. If they were accused of causing the injury on purpose, that would be criminal, not negligence. I am not exaggerating; I have had multiple defense expert doctors make that exact claim; that the defendant doctor did not do it on purpose, so he was not negligent. Amazingly, an educated person can say that with a straight face.

It is this attitude of many healthcare providers that leads to the justification to cover up 80% of medical errors. According to the U.S. Department of Health and Human services, not according to lawyers associations, 80% of errors are unreported. The under reporting percentages applied just as much to medical malpractice wrongful death as to minor mistakes and injuries. Meaning medical errors and doctor negligence are often covered up, not reported, or reported in medical records as something else to hide malpractice. There are numerous articles about medical errors going unreported and recently ABC News published a story: "Report: Hospital Errors Often Unreported".

I have personally been the lawyer on several cases wherein the operative report indicated something completely different than the post-op radiology images. The operative report will be written as the operation went perfectly, but the post-op radiology images show surgical clips left in, anatomy cut that was not reported as being cut, and so on. One example is a negligent lap-choli case I am currently handling, the doctor's op report was flawless, yet he left multiple surgical clips in the patient on her common bile duct, blocking her bile from her liver to her small intestine and causing a major complication. See Surgical Clips Left on Common Bile Duct by Missouri Surgeon

Keep this information in mind this election year as I am sure politicians will preach about the necessity of "tort reform" and limits on damages. What they are really saying is that their lobbyists paid them a lot of money to push laws that give them special treatment. Already healthcare providers, in most states, have special protections under the law that shield them from responsibility in many medical malpractice situations. Politicians and their surrogates try to scare you with the talking points of needed tort reform to keep doctors from fleeing the state and to keep health insurance premiums for all of us from going up. Before you listen to that propaganda again, see Medical Malpractice "Tort Reform" Myths Proven Wrong by Statistics

See Also: Missouri Medical Malpractice Issues - Almost No Public Information About Serious Medical Errors

Continue reading "80% OF MEDICAL ERRORS UNREPORTED according to US Department of Health and Human Services Report in January 2012 " »

In 2005 Governor Blunt passed tort "reform" which included caps on non-economic damages in Missouri medical malpractice lawsuits. See "Limits on Medical Malpractice Awards Constitutional?" for more information on the damage caps in Missouri.

The Plaintiff's bar has been trying to get a case to the Supreme Court so that the constitutionality of the damage caps could be finally determined. Almost 2 years ago, on January 14, 2010, the Klotz case was argued before the Supreme Court and we all hoped that would determine the caps issue, however, the Supreme Court was able to resolve the issues on appeal without getting to the constitutionality of the Med Mal damage caps. See Article about the 2010 Klotz case: "Missouri Supreme Court Hears Constitutionality of Missouri Medical Malpractice Non-Economic Damage Caps"

Today, the Court was able to reach the arguments and will likely make a ruling on the constitutionality of the damage caps. However, the caps being argued are the caps under the old law prior to 2005, however, a decision that the old caps are unconstitutional will most likely mean the caps under the new 2005 law are unconstitutional as well. The case is Ronald Sanders v. Iftekhar Agmed, MD, et al and the summary of the case is posted on the Supreme Court website with links to the briefs. See Constitutional validity of medical malpractice non-economic damages cap. Currently a few cases are being prepared to go to the Supreme Court on the caps issue under the new law.

The main constitutional challenge to the damage caps is that the tort "reform" law violated the right to a trial by jury. If the legislature imposes caps that inherently invades an individual's right to have a jury determine the facts of their case, damages being a major fact for a jury to determine. Each case is fact specific and an arbitrary cap imposed by the legislature absolutely violated the right to trial by jury. For detail about the right to a trial by jury argument see the briefs in the cases above and see: Personal Injury Lawyers File a Motion to Strike Affirmative Defenses in Missouri Medical Malpractice Lawsuit

Typically, the Supreme Court will take at least a few weeks if not a few months to publish their decision about today's case. This decision is absolutely crucial and very historic for our state and will have a major impact on individual rights in this state.

Medical malpractice claims are very complex and adversarial, and in that environment every edge counts. In reviewing cases with doctors to act as your expert, they sometimes have preliminary reports in the form of an email based on their initial understanding of part of the medical record. This is done in preparation for filing a lawsuit or for trial and should be kept between the attorney and expert. In a perfect world the expert will call the Plaintiff's lawyer to discuss his opinions, but with the convenience of email that is not always the case.

A preliminary report by an expert containing mental impressions based on initial review of case should be protected under Rule 56.01(b)(3) as Trial preparation materials. Rule 56.01(b)(3) states that a

"party may obtain discovery of documents and tangible things otherwise discoverable under Rule 56.01(b)(1) and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative, including an attorney, consultant, [...] only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that the adverse party is unable without undue hardship to obtain the substantial equivalent of the materials by other means."

The work product doctrine in Missouri protects from discovery both tangible and intangible work product. Ratcliff v. Sprint Mo., Inc., 261 S.W.3d 534, 547 (Mo.App. W.D.2008). Tangible work product consists of documents and materials prepared for trial and is given a qualified protection under Rule 56.01(b)(3). Therefore a preliminary report sent to counsel by their expert is protected from discovery as trial preparation materials if the preliminary report is: (1) documents or tangible things, (2) prepared by or for a party or a representative of that party, (3) in anticipation of litigation or for trial. State ex rel. Ford Motor Co. v. Westbrooke, 151 S.W.3d 364, 367 (Mo. banc 2004)

Such trial preparation materials may be discovered only if the party seeking discovery shows a substantial need for them in the preparation of the case and an inability to obtain the substantial equivalent of them without undue hardship. Rule 56.01(b)(3).See Edwards v. Mo. State Bd. of Chiropractic Examiners, 85 S.W.3d 10, 26 (Mo.App. W.D.2002).

Moreover, Rule 56.01(b)(3) requires that in ordering discovery of such materials stated above, when the required showing has been made, "the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative [expert witness] of a party concerning the litigation." Therefore, even if the party seeking the report show the substantial need and undue hardship, the preliminary report contains nothing but the Relator's expert's mental impressions, conclusions, and opinions and thus must be protected in its entirety. In this case the Court ordered the entire report produced.

Additionally, Missouri Rule 57.03 does not authorize the noticing party or require the witness to produce documents simply because they are requested. Under Rule 57.03, any Notice of Deposition requesting production of documents must be accompanied by a subpoena. State ex rel. Missouri Highway and Transportation Commission v Anderson, 759 SW2d 102 (Mo App S.D. 1988) holding, In connection with and experts deposition, a party may obtain the expert's records relating to the case by serving a subpoena duces tecum. Id at 106.

Continue reading "Disclosure of Expert Witness' Preliminary Report in Missouri Personal Injury Actions" »

The ethical state of business practice pivots on two things these days: bad press and/or lawsuits. What was once regulated by honor and integrity, these two seemingly more persuasive motivators have enabled us to be made aware of negligence pertaining to our health and welfare such as: the handling of beef in markets, assisted living facilities, police and precinct procedures, and careless doctors still practicing medicine. There is no doubt that investigative journalism perpetuates the public's outcry ball rolling.

Practicing in St Louis as a personal injury lawyer for ten years and after handling a lot of medical malpractice cases, the need for regulation and accountability in our healthcare industry is obvious. Most doctors hate lawyers so much that they will go to great lengths to cover each others backs. Don't get me wrong, most don't lie, but just about all will refuse to cooperate and help a patient who has been harmed by a doctor's negligence.

A major blow has been dealt to the health care consumer regarding accountability of providers. On September 1, in response to a decision by the Obama administration, the Health Resources and Services Administration (HRSA), an agency of the government run Department of Health and Human Services, removed a great source used in identifying oversights by state medical boards. The National Practitioner Data Bank (NPDB) was used by many sources such as state medical boards, hospitals, journalists, and insurance companies. The information previously accessible from this site listed, in broad descriptors, lax responses toward doctors with multiple malpractice payouts who were either never disciplined by the medical boards or their disciplines included numerous suspensions without a revocation of their medical license. It is important to note that the specific doctor's names are not mentioned in the public use file portion of the NPDB and any information that would name a doctor or facility specifically, must be acquired through other investigative resources.

Neurosurgeon Dr. Robert T. Tenny, of Kansas, complained to HRSA and threatened legal action if the information was not taken off the internet. This complaint made its way to the executive level of the government. A decision was quickly made and access to the site was removed. A letter was also sent to the Kansas City Star reporter who broke the story of Dr. Tenny's countless medical malpractice and wrongful death suites filed against him (all of which the good doctor has lost so far). I am sure the doctor would argue he is a good doc and the legal system is wrong every time.

The HRSA threatened the reporter that he could be liable for $11,000 or more, in fines for violating the federal law's confidentiality provision - though nonesuch violations were actually committed. Journalism and health care advocacy groups also responded quickly to these actions, including these letters to the administration rebuking not only the decision to shut down the public access file but also in response to the threat against the reporter. The journalists are actually baffled that the Obama administration has backtracked on its promise of greater transparency. As described by Charles Ornstein, president of the Advocacy for Health Care Journalists, who stated that the publically available anonymous data has been accessed for years, "nothing else has changed; just their interpretation (of the law)". Interpreting the law to suit oneself or, as in this case, doctors who have repeatedly shown an apathetic attitude toward patient care, or complete incompetence, does nothing but add more restrictions to those that are trying to hold these same people accountable for their actions.

St Louis injury lawyers who routinely deal with medical malpractice cases know that medical negligence cases are not only complex and expensive, but highly adversarial. It is often the approach of medical malpractice insurance companies and their lawyers to fight them with little to no negotiation and vigorous defense.

A common defense tactic in big medical malpractice cases is to name multiple doctors to testify on the same subject as an expert. Why do this? Two reasons, one, if one doctor testifies bad in a deposition then the defense will dis-endorse that doctor and stick with the other doctor. This tactic was used in our Medical malpractice case with spinal cord injury. Second reason, under Missouri Rules the Plaintiff has to pay the defense doctors for their time, that amount is usually $400-$700 per hour or even more. Thus it puts financial strain on the opposing party to force them to spend more money and put more risk on the table. Additionally, lawyers in the medical malpractice profession all know that is is difficult to get a doctor to testify against another doctor, but easy to find doctors lining up to defense other doctors.

How to counteract this tactic? Simple, first, if one of the experts does poorly in their deposition make sure that you videotaped it, then endorse that expert as one of your own and play the good parts of the deposition at trial.

Second, file a motion for protective order limiting the defense to only one medical expert on particular issue. This motion should almost always be granted in one form or the other. Usually the Judge limits them to one expert and they have to choose, or some judges will allow the duplicate experts to remain but require the defense to pay the expenses associated with the second deposition and then force them to choose one or other other expert for trial.

Missouri Rule 56.01(c) states:

"Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense..."

Defendant's endorsement of two similar experts who will testify to the same thing is duplicative and cumulative. Plaintiff will be caused to incur undue burden and expense in deposing both witnesses, and will suffer prejudice.

It is proper to exclude cumulative evidence. Payne v. Cornhusker Motor Lines, Inc., 177 S.W.3d 820, 840 (Mo.App. E.D. 2005).

Relevancy is the key criterion for admission of evidence, and the court must find evidence both logically and legally relevant in order to admit it. Olinger v. General Heating & Cooling Co., 896 S.W.2d 43, 48 (Mo.App. W.D.1994). "Evidence is 'logically relevant' if such evidence tends to make the existence of any material fact more or less probable than it would be without the evidence." State v. Sladek, 835 S.W.2d 308, 314 (Mo. banc 1992) (Thomas, J., concurring). But the inquiry does not end with logical relevance. Evidence must also be legally relevant to be admitted. Id. To determine legal relevance, the court must weigh the probative value, or usefulness, of the evidence against its costs, specifically the dangers of unfair prejudice, confusion of the issues, undue delay, misleading the jury, waste of time, or needless presentation of cumulative evidence. Id. The trial court must measure the usefulness of the evidence against its cost, and if the cost outweighs the usefulness, then the evidence is not legally relevant, and the court should exclude it.

Kroeger-Eberhart v. Eberhart, 254 S.W.3d 38, 43 (Mo.App. E.D. 2007).

Another example is Grab ex rel. Grab v. Dillon, 103 S.W.3d 228, (Mo.App. E.D. 2003), in which the plaintiff in a medical malpractice action sought to introduce a conclusion from a pathologist, which "came to the same conclusion as five other pathologists who reviewed the slides." The trial court excluded the pathologist's opinion because "[i]t is typically considered proper to exclude cumulative evidence." The appellate court affirmed the exclusion of the pathologist's opinion.

Continue reading "Use of Multiple Medical Experts on Same Topic, Should be Excluded as Cumulative " »

Most people's understanding of tort reform is that it is stopping so called "frivilous lawsuits" and if they ever need the jury system, well, their case would be a good case and theirs could never be "frivolous". People buy the propaganda of doctors fleeing the state and undeserving people gaming the system. This is simply not true, and the tort reform advocates know it. They simply do not like being sued and have the money to buy politicians and change the laws. Then they scare the public with claims of rising health care costs and insurance costs, convincing them it is better to hand over their 7th Amendment right to a trial by jury, one of the basic founding fundamentals of the justice system in America. See St Louis Medical Malpractice Article: Medical Malpractice Myth "Too Many Lawsuits" Debunked by Harvard

A try to be apolitical as I believe both parties are misguided, however, now that election season is approaching, we are hearing from one particular candidate about tort reform as one of his top two talking points straight from his website. Really? in this day of economic uncertainty, two wars ongoing, jobless rates through the roof, national debt and one of his main talking points is tort reform.

Well, here is how well it has worked in Texas, not only has it shut the courthouse doors for most average people, but it is also costing everyone more money, that's right, the costs savings was a MYTH! An independent study of data on Medicare spending in Texas shows that for the years following the enactment of medical malpractice caps and reform costs have gone up outpacing the national average:

Not only has per person Medicare spending in Texas continued to exceed the national average, the data also show that such spending rose at nearly twice the national average (15.1% versus 8.7%) in the four years since the medical liability reform legislation was passed. Furthermore, before such "cost-saving" legislation went into effect, per person Medicare reimbursement rates in Texas were the tenth highest in the nation. In 2007, reimbursement rates in Texas had risen to the second highest. None of this is resounding evidence that tort reform has been successful in controlling health care costs.

See the graph below from Dartmouth Atlas of Health Care, "Selected Medicare reimbursement measures."

So, the Too may lawsuits and frivolous claims has been proven wrong time and time again, even by Harvard University. And the rising healthcare costs myth has been proven wrong by the Texas experiment in shredding individuals' 7th Amendment Right to trial by jury. Yes, you still get a jury, but they can decide very little, as all their judgment and decisions have been legislatively hogtied.

As a St Louis medical malpractice attorney, I have this conversation with prospective clients all the time. when I tell them they do not have a case because of the 2005 reforms, they cannot believe it and often say that was meant for frivolous cases, and their case is a good case. Once you have some skin in the game through the death of a loved one or serious injury as the result of a doctor's negligence, you realize tort reform is just plain wrong.

Also see, Missouri Injury Lawyer Article: "Doctor Speaks Out Against Medical Malpractice Caps"

I don't know about you, but I feel better about 12 individual citizens, like you and me, deciding my case rather than a politician years before deciding it for me to protect insurance company profits.

Trial Lawyers - Keeping the Court House Doors Open for Consumers and Individuals

A St Louis medical negligence lawsuit we have been working on for several years settled for over $900,000. The injured Plaintiff was seen by a St Louis doctor who performed a cervical nerve root block. See Negligent Pain Injection Lawyer. Within fifteen minutes of the procedure she was left partially paralyzed, fortunately, she has mostly recovered from her paralysis and was able to return to her full time job.

We believe that the negligent doctor caused the partial paralysis by allowing the medicine to invade an artery through a combination of negligent techniques. One, the dosage of the pain medication steroid was double the recommended amount, two, the operative technique was negligent as he failed to use tubing between the syringe and needle to minimize needle movement, and three, the basic placement of the needle prior to the injection was in a dangerous location. See St Louis Medical Malpractice Lawyer Article: "Missouri Medical Negligence - Cervical Pain Injection Hits an Artery - Med Mal causes Depo Medrol to go into Spinal Cord and Brain - Spinal Cord Injury and Brain Injury resulting in Partial Paralysis"

Despite our injured client's neurological deficits, she missed only a few months of work and was able to return to her job full time within months of the spinal cord injury. She incurred about $200,000 in medical bills as a result of the injury and no lost wages. Generally, arterial invasion by a steroid results in devastating injuries and death, our client was lucky that her injuries were relatively minor.

One of the essential requirements to successfully pursuing a medical malpractice lawsuit is retaining a good medical expert. See St Louis Medical Negligence Attorney Article: "Use of Expert Witnesses by Missouri Injury Attorneys to successfully pursue Missouri Injury Claims and Lawsuits" Not only do you need an expert to testify regarding liability or negligence (violation of the medical standard of care), but before a Missouri medical negligence lawsuit can even be filed you must have a certificate of merit under Missouri Statute 538.225 or else the medical malpractice lawsuit will be dismissed. In fact, before retaining our St Louis medical malpractice law firm, our client initially retained another personal injury lawyer, however, they failed to file a certificate of merit and her case was dismissed. Additionally, they decided not to pursue the case after consulting with a medical expert. After we received the file, we immediately retained a well known and qualified expert in the field of diagnostic radiology. In fact, through a little research, we found out the expert the previous attorneys consulted with is a well defense expert, so obviously he talked the case down and immediately defended the negligent doctor.

Medical malpractice cases are time intensive, difficult, and very expensive. Many lawyers claim they handle medical malpractice cases, however few can successfully pursue them with excellent results. Choose your lawyer carefully.

Continue reading "St Louis Medical Malpractice Settlement: $900,000.00 for Spinal Cord Injury after Negligent Pain Injection " »

Missouri is just one of many states working hard to correct problems associated with allowing bad medical doctors to continue "practicing" medicine. (See Post Dispatch Article: Missouri Law Targets Incompetent Doctors) Governor Jay Nixon signed House Bill 265, which allows the healing arts board the ability to act more quickly in response to medical malpractice and other complaints against physicians believed to be "a threat to public health". It also provides better transparency between doctors and patients.

This new law will allow open access to doctor's background information such as: complaints filed, suspensions, education, specialty certifications, and all disciplinary records. The law will also afford swifter action against Missouri doctors suspected of substance abuse and mental illness. Prior procedures dictated that any complaint of this kind would first be heard by the state administrative hearing commission - a process that could take up to several years before happening - then another hearing would be held by the healing arts board. If the board decided it was a plausible complaint, the incompetent doctor would be ordered to complete competency and drug testing before being disciplined. The new law passes over the administrative hearing and gives more power to the healing arts board to take quick action.

"Transparency" seems to be the new political ambition at all levels of government, lets see if the law actually has teeth when applied to the real world. In dealing with doctor transparency, they may be right - though, the better terminology would be accountability. The ultimate form of accountability is the patient's right under the 7th Amendment - right to a jury trial; which is being eroded away in this country under the guise of "tort reform", a topic for an entirely new and very long conversation.

The new law goes into affect August 28, 2011.

As a St Louis injury lawyer handling St Louis medical malpractice lawsuits, I see the continued attack on the legal profession and my injured clients from people and organizations with the knee jerk reaction of claiming medical negligence cases are somehow inherently wrong and that juries and the legal system routinely overcompensate claimants. However, the statistics show this is an urban myth, likely believed by many people because of political affiliations or as the result of a very effective and concerted effort by the malpractice insurance companies to put these falsehoods out there.

According to a Medical Malpractice study by Harvard University and Published in the New England Journal of Medicine, the "frivolous lawsuit" argument is overblown:

"The researchers analyzed past malpractice claims to judge the volume of meritless lawsuits and determine their outcomes. Their findings suggest that portraits of a malpractice system riddled with frivolous lawsuits are overblown. Although nearly one third of claims lacked clear-cut evidence of medical error, most of these suits did not receive compensation. In fact, the number of meritorious claims that did not get paid was actually larger than the group of meritless claims that were paid. "

The Harvard research team sampled 31,000 medical records and found that one out of every 25 patients was injured by doctors. Of those injured, only 4 percent filed lawsuits. In another study conducted by Harvard School of Public Health and two other foundations, they found that of 1,452 medical malpractice lawsuits filed, 90 percent did show medical injury. A quarter of these claims were fatalities. Only six cases resulted in what could be called a "frivolous lawsuit"; meaning that compensation was paid, but no injury was identified.

A much bigger issue than "frivolous lawsuits" was that 236 malpractice cases were dismissed by the court despite proof of doctor error and some injury to the patient. Only 1,050 of the 1,452 cases were determined to have been decided correctly.

As we see by this small summary of a very lengthy study, healthcare issues of insurance rates, costs, and the myth of "defensive medicine" cannot be contributed to medical malpractice lawsuits. Many different hospitals and health centers are reworking their procedures to ensure better treatment, thereby decreasing mistakes, injuries, and ultimately lawsuits.

An example of this is the University of Michigan Medical System. Their restructuring of their procedures have resulted in half the number of lawsuits filed against their facilities and physicians. A policy of admitting fault and owning up to their mistakes rather than hiding mistakes from patients.

St Louis pharmacy and nurse malpractice case settles for $100,000.00. My client suffered injury to his eye, specifically his cornea, as a direct and proximate result of the improper dosage instructions given by Walgreens. Soon after retaining Missouri pharmacy malpractice lawyer, Ben Sansone; it was discovered that the injured client called Walgreens with continued complaints, which were clearly documented by the medical records, yet he was instructed to keep taking the same improper dosage of 1 drop per day. This improperly treated the eye infection which lead to injury to the eye, an injury that would have been avoided had the dosage been properly given.

The key to most Missouri injury cases related to health care malpractice, including pharmacist malpractice, is that you need a doctor to testify regarding causation and negligence. See: Proving Medical Damages in Missouri Injury Cases. Both of the victim's local St Louis Missouri treating eye doctors agreed that the corneal scar/hole was a direct result of the improper dosage that failed to clear up an eye infection. Moreover, they agreed that the injury victim had permanent vision problems that cannot be completely corrected. The vision problems include, wearing glasses only for vision correction (no contacts).

As experienced Missouri accident lawyers, we were able to gather the evidence required to settle this case quickly and before filing a lawsuit. Our client was extremely happy with the result of the case.

Personal Injury Client review:

"Mr. Sansone is a professional lawyer that will keep you abreast of every twist and turn. I have retained other attorneys over the years and Mr. Sansone ranks at the top." - Terry Watson.

Continue reading "Negligent Prescription Filling and Instructions - Missouri Pharmacy Malpractice " »

Recently our St Louis injury law firm, Sansone / Lauber, was retained by a young woman who was the victim of St Louis pharmacist malpractice after receiving the wrong prescription at a local St Louis pharmacy. Our injured client took daily medication for prevention of severe migraines, that medication was negligently refilled with estrogen, which caused serious side effects, including even more severe headaches, a hospital stay, and ongoing medical issues.

The pharmacist was negligent in his duty of care to our client and therefore liable to compensate for the resulting medical damages. Clearly, a pharmacist is responsible for filling the correct medication, that is the main purpose of their job. Missouri State Statute 195.060.1, is very clear on what information is required to be documented on the prescription label. Not only are pharmacies required to have the patients basic vitals, such as: name, address, etc., but also the drug name, strength, dosage directions, among other information.

Currently, Walgreens is involved in a multi-million dollar wrongful death lawsuit for failing to follow these clear directives. A 46 year old man died 36 hours after receiving his prescription, his family's wrongful death attorneys quickly spotted that the dosing instructions were negligently marked on the bottle. As a result, the man accidentally took too much medication which lead to his death.

Missouri medical malpractice cases involving medication errors are more frequent than we hear about. It is mainly because pharmacies, such as Walgreens, Rite Aid, and CVS, are quick to settle these claims to protect their reputations, and quite frankly, these cases speak for themselves. In most Missouri pharmaceutical error cases, it is easy to point the finger directly to the cause of the injury or death. An experienced Missouri Medical Malpractice attorney knows the laws surrounding pharmacy protocols, and can therefore help prove the causation link between prescription error and personal injuries

As a St Louis Missouri medical malpractice lawyer, one of the most common defenses I hear is that the injury the patient suffered is a "known risk" or "complication" of the procedure, therefore, to cause the injury is not medically negligent. Complications are not always like side effects, which are unavoidable in certain situations and result without negligence. May times complications are unavoidable and not the result of negligence, however, just because a certain complication is a known risk of the procedure does not absolve the doctor of any negligence. Inattentive mistakes (medical negligence) is a "known risk" of surgery, inattentive mistakes are a known risk of just about anything we do, but they are still mistakes.

Lets take for example Gallbladder removal operations, the defense is often that injury to the common bile duct is a known risk of the procedure so its not negligence to cause the injury. So, does mistaking the common duct for the cystic duct and then cutting it not negligent? or putting and leaving clips on the common bile duct not negligent? Obviously that is negligence. Maybe a situation where the surgeon nicks the common duct and then realizes his error and corrects it appropriately, then I would agree, it is not negligent.

Malpractice defense lawyers love to argue that it is a known risk or complication, the doctor had no bad intent, and he was doing his best. Despite the fact the rules of surgery were broken. A known risk of most operations, or anytime you go under general anesthesia, is death. So if the surgeon is negligent and the patient dies is the health care provider absolved from any Missouri wrongful death action simply because death is a known risk of a procedure? Of course not, it is a known risk but may have been caused for avoidable or unavoidable reasons.

Lets put the "known risk" defense in context with something most of us do everyday, driving. Every time we drive anywhere it is a known risk that we may be in a car accident and suffer injury.

It is a "known risk" (complication) every time you drive through an intersection that someone may run a red light and hit you broadside.

It is a "known risk" (complication) that another driver could drift across the center line and cause a head on collision.

It is a "known risk" when you stop at a red light or stop sign an inattentive driver could run into the rear of your car. In fact this is a very well known risk as it is the most common type of motor vehicle accident.

We take on a "known risk" (complication) of possibly being in a car accident every time we drive.

So, since the above situations are "known risks" of driving does that mean the other driver that did not follow the rules of the road, was therefore negligent, and caused the car or truck accident resulting in personal injury should not be held accountable? because it is a known risk (i.e. complication) of driving? Of course not!

A personal injury lawyer must make these distinctions clear to a jury, as they, like most people, are not familiar with medical terms and rules, and when they hear "known risk" or "known complication" they are trying to be tricked into believing that is a get out of jail free card for the health care provider. Injury attorneys need to clearly explain the difference between known risks and unavoidable side effects. I like the analogy of the rules of the road above to dispel the know risks defense, then to further explain, unavoidable complications are like medicine side effects, if you take Aspirin, you may get stomach pain, not because someone was negligent, but it is an unavoidable complication or side effect that can occur.

Continue reading "Common Defenses Used in Missouri Medical Malpractice Cases - Putting the "Known Risk" Defense in Context " »

Medical mistakes and injuries in gallbladder removal operations that lead to Missouri medical malpractice case, can often be avoided by knowing the anatomy. See St Louis Injury Lawyer Article about Lap-Cholis and the Anatomy

One of the methods for properly identifying the anatomy is call the "Critical View of Safety" or CVS for short. Using the CVS technique, Calot's triangle is completely unfolded by mobilizing the gallbladder neck from the gallbladder bed of the liver before transecting the cystic artery and duct. Thus proper identification of the anatomy and fewer instances of surgical medical malpractice related to laparoscopic gallbladder removal.

The figure to the right is a depiction of the critical view of safety. Circumferential dissection, visualization of the anatomy via the triangle of calot, and using the CVS technique; a surgeon can obtain confident identification of the anatomy, and use of an intraoperative cholangiogram if there is any doubt by the surgeon. See St Louis Injury Lawyer Article about Knowing the Indications for an Intraoperative Cholangiogram. The CVS approach eliminates complications from negligent identification of the anatomy, as the improper or just lack of anatomical identification leads to cutting and or clipping of the wrong ducts or vessels.

The operative video below is a must watch for any personal injury lawyer trying to understand the critical view of safety. The video was done to show the anatomy of gall bladder region, the safe zone, dangerous zone, and the critical view of safety.

Even if the gallbladder is highly inflamed (often a major reason to remove the gallbladder in the first place), the CVS technique still works:

[I]n cases of badly inflamed gallbladders, it is often hard to achieve a critical view of safety, because Calot's triangle is often solid and cannot be expanded. In our standardized procedure, which is based on exposing the inner layer of the subserosal layer (the ss-i layer), the critical view of safety can be safely achieved. We have safely performed LC, using our standardized procedure, for many cases with cholecystitis with highly inflamed gallbladders

Quote from: The critical view of safety in laparoscopic cholecystectomy is optimized by exposing the inner layer of the subserosal layer

Continue reading "Understanding the Critical View of Safety "CVS" for use by Injury Lawyers in Missouri Medical Malpractice Cases " »

St Louis Post Dispatch: Study says state medical boards don't punish dangerous doctors:

Last year, our investigation of the health care system portrayed the agency that regulates Missouri doctors as one of the nation's weakest.

As a practicing St Louis area Missouri medical malpractice attorney, I can tell you from experience that the reporting of serious complications and doctor mistakes rarely happens. Most of it is either not reported at all or hid within the hospital's risk management office behind the "peer review" shield. Which is in place because doctors and hospitals claim if reporting of complications were public that would discourage the actual reporting of it - BUT IT IS NOT BEING REPORTED ANYWAY! On average 8 per year are reported!

An analysis by the Post-Dispatch showed that from 2004 through 2008, Missouri's 140 hospitals reported 41 actions against 32 doctors - or a little more than eight a year.

One such St Louis medical negligence lawsuit I handled involved a doctor that I cannot name, but by the time we were done with the case had uncovered multiple deaths and dozens of serious complications caused by outright neglect and gross negligence. This doctor was never reported to the Missouri board of healing arts until after our case and it took us years to get the records of all his problems through court action and from the hospital he practiced at. Thankfully, that doctor's surgical privileges have been suspended indefinitely. That St Louis wrongful death case settled for 4.5 Million dollars.

Post Dispatch article also stated:

As long ago as 1996, a government agency concluded that the number of hospital reports was "unreasonably low." It has gotten even lower. In 2008, the number of reports was three-fourths of the 1996 total, according to the newspaper's analysis.

Under reporting of Missouri medical mistakes allows bad doctors to go unchecked, but sooner or later they make a mistake that cannot be hidden, but by that time it is too late, it already cost someone their life, just like what happened in this St Louis wrongful death case settled by injury attorney Ben Sansone.