Missouri Injury Law Blog

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.

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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.

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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.

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Posted In: Injury Law , Medical Malpractice , Staff articles - Erin's Corner

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As many Missouri personal injury victims and Missouri injury attorneys know, since August 2005 Missouri tort "reform" was signed into law and gave health care providers special status by limiting Missouri personal injury judgments or money awards against them to $350,000 in non economic damages. In the context of life altering injuries or the needless death of a loved one, $350,000 is an insult to the severely injured victims or their family.

The disparity in our system that the current law forces upon use is best described by Supreme Court Justice Teitelman's words in opining the law is unconstitutional under the equal protection clause of the constitution:

"The caps operate on a perverse irony -- those with relatively minor injuries are permitted full recovery, while the most severely injured among us are denied. It is difficult to conceive of the necessity of a health care policy that expressly relies on discrimination against the small number of unfortunate individuals who suffer the most debilitating, painful, lifelong disabilities as a result of medical negligence."

Earlier this year, a case finally made its way to the Missouri Supreme Court, while the case had many issues for the court to decide, one important potential issue was the constitutionality of Missouri medical malpractice caps on non-economic damages. See Missouri injury lawyer blog article: "Missouri Supreme Court Hears Constitutionality of Missouri Medical Malpractice Non-Economic Damage Caps".

The court found that the Missouri non-economic medical malpractice damage caps did not apply to the particular case because the case was initially filed prior to the new law becoming effective. Therefore, the issue of Missouri medical malpractice damage caps could not be addressed as the issue was resolved on the non-retroactive application of the law. See the Missouri Supreme Court opinion in Klotz v. St Anthony's Medical Center.

However, two of the Missouri Supreme Court Judges wrote concurring opinions wherein they addressed the constitutionality of the Missouri medical malpractice damage caps. While these opinions are not binding in this case, this sends a signal as to how the Missouri Supreme Court may rule on a future case wherein the issue will be reached.

Judge Wolff wrote a detailed and brilliant opinion that the caps violate the constitutional right to a trial by Jury. A very short excerpt:

"There is a fundamental flaw in the legislated limits on jury verdicts in section 538.210, which is well known but which is not addressed in today's opinion. And so, I take the liberty to write individually to explain the issue that the court one day will have to confront – that the limit on a jury's determination of damages violates the constitutional guarantee in article I, section 22(a) that "the right of trial by jury as heretofore enjoyed shall remain inviolate."

I encourage anyone interested in this topic to read the entire concurring opinion written by Judge Wolff. See Klotz v St Anthony's Concurring Opinion of Judge Wolff Starting on Page 29 of the .pdf file.

Additionally, Judge Teitelman concurred with Judge Wolff's opinion that the caps violate the right to a trial by jury and added that it also violates the equal protection clause. Again, I encourage anyone interested in this to read the full opinion. I used one of his excerpts above, additionally, another important excerpt:

"There are two more subtle but no less pernicious side effects to caps in this case. In addition to disadvantaging the most seriously injured, the impacts of the caps will fall disproportionately on the young and economically disadvantaged. Young people, because they will have to live with their injuries and disabilities the longest, bear the brunt of section 538.210. Similarly, those with generally more limited economic prospects -- the poverty-stricken, the physically and mentally disabled, single mothers, wounded veterans, the elderly, and others -- are impacted disproportionately by the arbitrary limits on non-economic damages."

It is a difficult reality when I, as a personal injury lawyer, have to tell potential clients that I cannot pursue a medical negligence case for the death of an elderly parent because the only possible recovery is the damage caps, simply because that person was no longer working and oftentimes the value the law puts on their life is limited to that $350,000. While that is a lot of money in most circumstances, in the context of the value of a life and the expense of bringing a Missouri medical malpractice lawsuit, that the insurance company will fight to the end, that makes the case economically infeasible to pursue due to the time and expense required. The result .... less legal action, less accountability, less fear of neglect begets more neglect and injury.

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Illinois personal injury lawyers that represent medical malpractice victims will be ale to seek justice and full compensation for their clients now that the Illinois Supreme Court has ruled non-economic damages in medical malpractice cases violates the Illinois Constitution. Under the law victims could be awarded no more than $500,000 in non-economic damages against doctors and $1 million against hospitals. Non-economic damages are damages usually called "pain and suffering" which compensate for disability, disfigurement, ongoing and past symptoms and hardship.

Of course, the AMA and other tort reform groups immediately criticize the decision as damaging the quality and access to health care for all. It is easy to deny victims justice through "tort reform" until you have been one, I guarantee, none of those proponents have ever had a family member or close friend who has been a victim of malpractice, because their tune would change very quickly.

The Court made a very logical and reasonable decision concluding that the caps violated the separation of powers clause of the Illinois Constitution because the legislature cannot make case-by-case determinations, separations of powers concerns would be violated by the “legislative attempt to mandate legal conclusions.”

There are already mechanisms to prevent frivolous lawsuits and excessive awards through judiciary powers on a case by case basis, they are called, motions to dismiss, summary judgments, a jury, remittitur, etc ...

The courts are constitutionally empowered, and indeed obligated, to reduce excessive verdicts where appropriate in light of the evidence adduced in a particular case. But reducing damages by operation of law, without regard to the specific circumstances, is unconstitutional. Quite frankly, many legislators and tort reform groups will not be happy until medical malpractice cases are completely barred, which is one of the main purposes behind the caps.

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Illinois personal injury lawyers that represent medical malpractice victims will be ale to seek justice and full compensation for their clients now that the Illinois Supreme Court has ruled non-economic damages in medical malpractice cases violates the Illinois Constitution. Under the law victims could be awarded no more than $500,000 in non-economic damages against doctors and $1 million against hospitals. Non-economic damages are damages usually called "pain and suffering" which compensate for disability, disfigurement, ongoing and past symptoms and hardship.

Of course, the AMA and other tort reform groups immediately criticize the decision as damaging the quality and access to health care for all. It is easy to deny victims justice through "tort reform" until you have been one, I guarantee, none of those proponents have ever had a family member or close friend who has been a victim of malpractice, because their tune would change very quickly.

The Court made a very logical and reasonable decision concluding that the caps violated the separation of powers clause of the Illinois Constitution because the legislature cannot make case-by-case determinations, separations of powers concerns would be violated by the “legislative attempt to mandate legal conclusions.”

There are already mechanisms to prevent frivolous lawsuits and excessive awards through judiciary powers on a case by case basis, they are called, motions to dismiss, summary judgments, a jury, remittitur, etc ...

The courts are constitutionally empowered, and indeed obligated, to reduce excessive verdicts where appropriate in light of the evidence adduced in a particular case. But reducing damages by operation of law, without regard to the specific circumstances, is unconstitutional. Quite frankly, many legislators and tort reform groups will not be happy until medical malpractice cases are completely barred, which is one of the main purposes behind the caps.

Illinois Medical Malpractice Caps Unconstitutional - RELATED ARTICLES:

Chicago Sun Times - State Medical Malpractice Caps Unconstitutional

Medical Malpractice Caps Are Not the Answer - Chicago Tribune

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In 2005 Missouri tort reform was passed and its main thrust was to eliminate personal injury medical malpractice cases in Missouri. One of the primary mechanisms to eliminate these cases was to institute non-economic damage caps of $350,000, which cannot be adjusted for inflation. The old caps were adjusted for inflation, as anyone with a basic understanding of economics knows the value of the dollar changes over the years. With low limits Plaintiff lawyers cannot pursue these cases as their upside is low because they take cases on contingency basis and front all costs, while the defense lawyers are well funded by Missouri medical malpractice insurers and can afford to fight every single case and spend thousands of hours.

There are many arguments in favor of the caps, mainly a hatred for trial lawyers based on years of tort reform propaganda. However, a simple fact, trial lawyers are the only group in the United States that represent and fight to protect the rights of the future injured. People that have never experienced medical malpractice are not concerned about those rights, as people do not foresee themselves as ever having that problem and buy into the tort reform propaganda of doctors fleeing, insurance rates increasing, and trial lawyers bringing merit-less cases. If a personal injury lawyer brings a merit-less case they will soon be out of business, as those cases are thrown out of court or lose in front of a jury, costing the personal injury lawyer tens of thousands in out of pocket expenses and 1000s of hours of lost time they will not be compensated for. Any good persoanl injury lawyer only pursues legitimate cases.

I cannot tell you the countless times people, that have generally though of themselves as for tort reform, that experience death or serious injury in their family as a result of medical negligence, very quickly change their tune, realize the inequities of the current system in Missouri, and get very angry. The life of a spouse, child, or parent is now capped at $350,000, that is what Missouri legislature says your family member's life is worth. On top of that, if the Missouri medical malpractice insurance company is looking at a worst case scenario of $350,000, they will fight legitimate cases tooth and nail, as the risk of financial loss has now just flown out the window. As all Missouri medical malpractice insurance policies are at least $500,000 but the vast majority are 1 Million or more per Missouri law.

Finally, 4 years after the institution of the caps, the Missouri Supreme Court will hear a case challenging the constitutionality of those caps. See: Post dispatch Article of 12/6/2009 by Tony Messenger - "Limits to jury damage awards to be debated by Missouri Supreme Court". In his article the arguments over the caps and sample cases are laid out in detail. I refer you to this article as I could write dozens of pages discussing this Missouri personal injury topic.

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For about a week myself and other personal injury lawyers were waiting to see the President's speech to the AMA in Chicago, IL today. For about a week there have been concerns that Obama would advocate limitations on medical malpractice cases in order to get the AMA to support his health care initiatives.

Today, I was relieved when I heard him say the following:

"[...] I’m not advocating caps on malpractice awards which I believe can be unfair to people who’ve been wrongfully harmed, I do think we need to explore a range of ideas about how to put patient safety first, let doctors focus on practicing medicine, and encourage broader use of evidence-based guidelines. That’s how we can scale back the excessive defensive medicine reinforcing our current system of more treatment rather than better care.”

Personal injury trial lawyers are usually painted as the special interest group that does not want any limitation on injury lawsuits. This is true as personal injury lawyers are the only group that advocate for those who may be harmed in the future. Individuals and families that have never been affected by medical mistakes usually see this issue as lawyer greed, however, those same people realize the importance of the issue of patient rights and justice as soon as their lives are touched by it.

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If you are not a personal injury lawyer the first question you may have is what does Res Ipsa Loquitur mean and what does it have to do with personal injury law or Missouri medical malpractice?

Res Ipsa Loquitur is Latin for "the thing speaks for itself." It is a legal doctrine which dictates that when a personal injury occurs and there is no way the personal injury could have happened in the absence of negligence, then the injured victim does not have to prove a specific act of negligence.

Res Ipsa, under Missouri law, is an evidentiary rule allowing the jury to infer that a loss or injury was caused by a negligent act of the defendant, without requiring the victim to prove a specific act or acts of negligence.

Generally, res ipsa was not allowed for Missouri medical malpractice cases (except for very limited exceptions) until just recently after the Missouri Supreme Court's 2008 ruling in Sides v St Anthony's Medical Center, 258 S.W. 3d 811 (Mo. 2008). The Sides court ruled res ipsa is possible for all med mal cases as long as the following res ipsa elements are present and a medical expert testifies to such:

(a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care;
(b) the instrumentality involved was under the management and control of the defendant; and
(c) the defendant possesses superior knowledge or means of information as to the cause of the occurrence.

Now tort deform advocates try to argue that res ipsa allows a "presumption" of negligence and allows personal injury lawyers to unfairly target doctors. This is absolutely not true. It allows only an "inference" which still must be proven by the Plaintiff as more likely than not to have been below the standard of care and the proximate cause of the injury or loss.

An obvious example of why this is necessary: if you undergo an operation and wake up with a surgical device left in your body, you may not be able to prove the specific act (i.e. negligent doctor used the device, put it in the body, and forgot to take it out) because you were unconscious and maybe you see nothing about the device being left in you noted in the records as you have no control over them. Clearly, someone was negligent. The personal injury medical malpractice victim should not be forced to prove a specific act of negligence if there is no evidence of it. A surgical tool is not left in your body without someone being negligent. There are many cases that are not as clear and obvious as the example above; however, if a medical expert testifies that a particular result does not occur in the absence of negligence, then there is a submissible cause of action in Missouri for medical negligence.

Clearly, in the medical malpractice field this was a greatly needed victims' right issue, as health care providers possess much superior knowledge to what is going on in the operating room and the defendant is often the only witness to the negligence, which can easily be distorted or simply left out of the defendant's report. Trust me, this DOES happen more often than you may think. I have personally had doctors and nurses admit this to me off the record on several occasions.

Current Missouri medical malpractice case we are pursuing on a res ipsa theory as all the evidence of negligence was within the control of the defendant.

Example of Missouri Medical Malpractice Petition alleging Res Ipsa

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Currently we are representing the victim of medical malpractice in St Louis Missouri, she was completely paralyzed after a cervical pain injection hit her artery taking the medication (depo medrol) to her spinal cord and brain, where it caused lesions and serious nerve damage. For several months she was completely paralyzed from the chest down, thankfully, she has made great strides since then but still faces many daily challenges. Unfortunately, she still walks with a severe limp and has no feeling from the waist down causing hardship on a daily basis.

The depo medrol being injected into the artery can be seen in the fluoroscope image (above right), the flaring shows the medicine being transported in the artery.

A few lawyers told her she did not have a case, I have heard this before, in fact, my largest multimillion dollar medical malpractice settlement (4.5 million) was for a Missouri medical malpractice case that several previous lawyers though was not a case; expertise and experience in the medical legal arena is key to evaluating a case. That case ended up being the largest reported Missouri medical malpractice settlement in Missouri for 2007 and settled for a whopping $4,500,000.00 about 1 month prior to trial.

After meeting with the client is this case I immediately knew she had a case and was determined to find the medical evidence and experts to support her case. Within just a few short months we had two specialists that 100% agree with me.

In this case, the patient received a depo medrol shot that was supposed to go into the nerve root and block the pain signal that was being sent to her brain. The St Louis MO medical negligence occurred when the pain injection doctor not only hit the artery, but then injected the depo medrol into that artery, carrying the medication to the spinal cord and frontal lobe of the brain and killing nerves and cells, thus resulting in serious spinal cord injuries and brain injuries resulting in permanent partial paralysis.

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As any Missouri personal injury lawyer would know, the statute of limitations to bring a Missouri medical malpractice lawsuit is generally 2 years from the date of the alleged Missouri medical negligence. This rule is laid out in Missouri Statute 516.105, Actions Against Healthcare Providers.

However, patients often do not know there was any negligence on behalf of a doctor or other medical care provider until it is too late, i.e. more than 2 years or so close to the 2 year limit that proper investigation needed to prepare a lawsuit is impractical; being that a medical malpractice lawsuit in Missouri requires a "certificate of merit" by a medical professional in the same area of medicine. This often takes weeks, if not months to get.

There are several exceptions that can toll the start of the two years, one of the primary exceptions is the "failure to inform exception" laid out in Missouri Statute 516.105(2). If the alleged medical malpractice is the failure to inform a patient of test results, then the 2 years runs from the actual discovery of the adverse test results or when the patient "in the exercise of ordinary care should have discovered such alleged negligent failure to inform."

Once such case is currently pending in St Louis County Circuit Court. In the pending case, the patient had a mammogram in 2002 that revealed she had breast cancer, however, the doctor never informed the patient of the adverse test result; therefore, she did not discover she had breast cancer until almost 3 years later when she had a subsequent mammogram in early 2005. Undoubtedly, the cancer was much more severe and progressive in 2005 than it was in 2002; leading to more invasive, aggressive, and drawn out medical treatment.

The Defendant hospital and doctor tried to have the case dismissed claiming that the patient should not be able to recover because the case was not filed until August 2005, 3 years after the failure to inform; moreover, the defendants argued that the exception should not allow the statute to toll an extra year because the patient should have investigated or found out about the error on her own much sooner.

The defendant's filed a motion for summary judgment on the issue, and an order was recently entered that allowed justice for this poor woman to still be in reach. The Judge held that the statute of limitations does not bar the case, but that a jury should be able to decide whether or not she should have investigated or got a subsequent test sooner.

Often we are bombarded with the propaganda that personal injury trial lawyers file unjust cases against doctors, when this could not be farther from the truth. Healthcare providers have more legal protections than any other individuals or entities under the Missouri Tort system; yet in this case a doctor clearly failed to inform a patient she had cancer and still attempts to blame the patient and claim the lawsuit is illegitimate.

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As a Missouri and Illinois personal injury attorney with a substantial amount of my practice dealing with Missouri medical malpractice cases or Illinois medical negligence cases, I screen dozens of cases a month from people and families who have been devastated by a medical mistake, neglect, or sometimes just a perceived mistake. Most common are misdiagnosis of an elderly patient's medical condition which leads to the failure to treat critical health conditions and a resultant death. Common real life cases I have dealt with recently:

Misdiagnosis of bronchopneumonia:

An elderly patient was suffering from flu like symptoms, her doctor noted trouble breathing, cough, fatigue, and most importantly, difficulty breathing. Doctor did not perform any diagnostics told the patient to take Tylenol and push fluids and then sent her home.

Tragically the patient died within 24 hours of bronchopnueumonia. Doctor was negligent as she failed to even do a simple chest x-ray which would have revealed fluid in the lungs and required the patient to be admitted to the hospital.

Misdiagnosis of abdominal aortic aneurysm and other heart conditions:

Becoming more common, at least in my experience, is the misdiagnosis of serious heart conditions as heart burn or indigestion. In most cases a chest CT would rule out life threatening conditions or find them so appropriate treatment can be administered. I currently have several heart disease misdiagnosis cases under investigation.

Limitations of Awards:

Recently, a jury awarded the family of a deceased 45 year old steel worker $4.45 million dollars as they found the doctor was negligent for failure to diagnose a heart condition which would have been found on a chest CT and was consistent with the symptoms the patient was complaining of. (Medical malpractice verdict article)

Now these awards are based on medical expenses, lost support and lost wages, and pain and suffering of the victim and the family. Often these awards are touted by insurance companies as excessive, however, in this case the verdict was absolutely not excessive, but what you will never hear from the insurance and medical lobby, is that these awards are drastically limited by statutory damage caps. For example, the above case the $4.45 million was reduced to $1.25 million as medical malpractice damages are capped by law.

Many clients come to me with legitimate cases of medical malpractice, however, if the malpractice ended up in less than $100,000 - $300,000 or so of medical bills then the case is economically unfeasible to pursue as the cost of pursuit will far outweigh any recovery. Prime example, clear medical malpractice resulting in the death of an elderly person with no dependants, and the death was quick and did not result in a lot of additional medical bills. Liability may be clear, but the case is often not worth pursuing, unless the negligence is egregious, because of the the caps of $350,000 in Missouri. That's right, if your parent or grandparent die because of medical malpractice and they have no dependants (as elderly people often do not) and they do not rack up hundreds of thousands of dollars in medical bills related to the malpractice, then their life is worth $350,000 in Missouri, a disturbing thought.

ARTICLE / STUDY (.pdf format) - Medical Malpractice Caps Have not Resulted in Reduction of Medical Malpractice Premiums Despite Major Reduced Payouts by Medical Malpractice Insurers.

The above study shows the flaws of the medical malpractice lawsuit myth that lawsuits are raising insurance premiums driving doctors out of the business and raising your health care costs.

Conclusion of the study: "There is no doubt that the implementation of non-economic damage caps has resulted in lower claim payouts for insurers. For caps to be considered successful, however, the lower payouts would need to translate into lower med mal premiums for medical professionals. Unfortunately, that has not been the case due to the continuing presence of other, far more significant factors driving premium rates higher."

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We have all heard the claim that personal injury lawyers and medical malpractice lawsuits are driving malpractice insurance costs up for the doctors and hospitals and thus driving health insurance premiums and health care costs up for everybody. But are medical malpractice lawsuits that compensate injured victims and their families really at fault?

In July 2005, Jay Angoff, a former Missouri insurance commissioner, found that the payout on Missouri medical malpractice claims between 2000 and 2005 was practically the same each year. However, during those same 5 years the U.S. medical malpractice insurance companies increased doctors' medical malpractice insurance premiums by 120.2% percent over the same period.

One specific example is Medical Assurance, a Missouri medical malpractice insurer. In 2004 Med Assurance increased its rates by 89% (collecting an extra $151 Million in premiums); during that same year its payouts for claims and lawsuits fell by 1/3. Med Assurance only paid out 10 cents for every dollar collected.

Click here for examples of several other medical malpractice insurers that raise their rates significantly while their payouts remain the same or even fall.

What are the consequences of tort reform? Records profits for insurance companies and denial of justice for injured victims. For example, in Missouri the tort laws were so distorted in 2005 that now legitimate cases are economically infeasible and most top Missouri medical malpractice lawyers will not pursue the cases. What was touted in 2005 by the politicians and chamber of commerce as win for doctors was really a big win for insurance companies; they have seen record profits while doctors' insurance premiums are still rising and vicitms are denied justice.

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First of all, I am not supporting or opposing abortion rights in this post, on a personal level I disagree with the pro-choice position, however, on a legal level I believe it is a State issue. This post discusses a recent development in Missouri medical malpractice law.

State Representative Muschany is sponsoring a bill that would allow an exemption to medical malpractice damage caps for women making a Missouri medical malpractice claim related to an abortion procedure. Clearly an attempt to curtail abortion, however, my focus is on the hypocrisy of our legislature in their logic that the damage cap bars these women from adequate justice but for everybody else damage caps are OK and do not bar the victims and their family from justice simply because the negligent party was a health care provider.

When asked why he supported this exemption he stated "I want to protect young, vulnerable women", additionally he stated while women may not suffer economic damages resulting from a botched abortion, they confront “considerable pain and suffering damages". What about other people that suffer a botched surgery or medical procedure that do not incur significant economic damages but confront considerable pain and suffering? What about an exemption for them, or does the insurance lobby have too much influence over him and others for them to admit it! He is making an argument that is counter-intuitive to the 2005 tort reform bill on damage caps.

As a Missouri medical malpractice injury lawyer I can site a dozen cases off the top of my head that victims and their families have brought to me where the malpractice is blatant, however, due to the lack of economic damages they are limited to $350,000 (assuming the legal claim is 100% successful) for serious injury or even death. Making the case economically infeasible to pursue as the medical malpractice insurers and their lawyers know the Plaintiffs have to spend significant amounts of money to bring the case and juries often side with doctors due to a successful propaganda campaign wages for the last decade.

As you may know, in 2005 the State of Missouri passed tort reform which imposed damage caps of $350,000 (not adjusted for inflation) on medical malpractice cases for non-economic damages (all damages that a victim does not have a bill for, i.e. daily pain and suffering of living with an injury). Therefore, if an elderly person with no income and no dependants dies suddenly as a result of a medical provider's negligence, then the family is limited to $350,000; regardless of the pain and suffering inflicted by the negligent act.

Sources:

The Columbia Missourian - 2/7/2008 Article

Missouri Bill Tracking

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As most experienced injury lawyers will agree, Missouri and Illinois medical malpractice cases are often the most difficult type of personal injury cases to pursue. Doctors, hospitals, health care providers and medical malpractice insurance companies fight all medical malpractice lawsuits and claims persistently and unscrupulously, even when liability is clear. Clear liability does not matter to the health care industry and medical malpractice insurers, they always deny legal responsibility.

Many victims of medical negligence and their families that I have represented in St Louis and across the state of Missouri often cannot believe the medical providers unashamed denial of fault, especially when it is clear. This is compounded when your clients are parents and their injured young son, as in a malpractice case I am currently handling. This medical negligence case involves a 4 year old boy who inexplicably went into a state of unconsciousness and was also showing multiple outward symptoms of seizure and other type of neurological deficits. The symptoms the boy was showing almost exactly parallel the symptoms all the medical literature states are the signs and symptoms of herpes encephalitis,a viral infection that attacks the brain by causing swelling and permanent neurological and brain injury and damage . The parents rushed their son to the local emergency room, however, despite these clear signs of a problem, the emergency room doctor, and his pediatrician who showed up, diagnosed the boy with an ear infection and sent him home about an hour after he arrived at the emergency room. Unfortunately, after being sent home, the child suffered intense seizures that caused irreversible and permanent brain injury. Upon readmission, the attending emergency room physician quickly identified the symptoms and took the appropriate medical action.

Recently, we deposed the emergency room physician and the pediatrician. Through almost an entire day of depositions of the doctors, the parents understandably had a hard time dealing with the blatant denial when the facts were so clear. This coupled with the fact that their son is permanently suffering neurological damage and the severe and life altering symptoms that come with such a brain injury. Many people, including injury lawyers, often do not realize the intensity required to effectively take a medical deposition when the witness is a doctor defendant. Most doctors are very intelligent and are good at responding evasively; long intense depositions are necessary to get as close to the truth as possible. During my first several years of dealing with medical malpractice cases I gained high respect for Missouri medical malpractice lawyers upon realizing the complexity and hard work required to successfully pursue medical malpractice cases.

The above case represents a Missouri medical malpractice case with true merit as there is legal liability for medical malpractice (someone was negligent) and there are damages (injury that causes economic loss and pain and suffering). We will pursue this case to trial and seek money damages to cover the minor child's reduced earning capability and future medical care; expected to be more than $5,000,000. As far as pain and suffering, that is capped by Missouri law at $350,000. This cap effectively eliminates Missouri medical malpractice cases unless their are significant injuries as the limitation of damages sometimes make the case economically unfeasible to pursue, as the one above. You have a lifetime of future care, lost wages, opportunity, or other economic damages pushing the case into the multi-million dollar medical malpractice case category.

Missouri Injury Lawyer Reference Source - Missouri Medical Malpractice Petition - Failure To Diagnose - Claim against Admitting Emergency Room Doctor, Consulting Pediatrician, and Hospital as the Employer

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As an Illinois injury lawyer with a significant Missouri and Illinois medical malpractice legal practice, I am always keeping an eye on the interests of future injured victims and whether or not they will have any rights left in the years to come as the recent trend in Misosuri and Illinois, as well as other states. For the last 10 years their has been a constant and significant erosion of medical malpractice victim rights. Illinois is starting to swing that pendulum back to where it belongs, recently, a Circuit Court Judge for Cook County Illinois ruled that the damage cap provision of the 2005 Illinois Tort Reform Statute (Public Act 94-677) which limits non-economic damages to $500,000 against doctors and $1,000,000 against some hospitals, is unconstitutional. The Judge ruled that the act infringed on the jury's deliberation and amounts to a "legislative remittur" of the jury's findings. Remittur is when the court reduces a verdict based on several factors, but essentially the court will reduce the verdict amount if it is clearly excessive based on the facts of the case. The tort reform act is imposing remittur without consideration of the merits of the specific case, thus infringing on the provence of the jury and unconstitutional. Moreover, the tort reform act did not contain a severability clause, a clause that allows the rest of the act to survive if one portion is found unconstitutional; therefore, the entire act is deemed unconstitutional.

This is clearly a victory for victims and the trial lawyers bar, particularly Illinois injury trial lawyers (one of the few only organizations that represent the interests of future injured parties).

Clearly, this ruling will be challenged on appeal and this issue will likely go to the Supreme Court of Illinois despite the ruling on the appellate level. However, this ruling represents a victory in one of many battles of the war between medical malpractice victims and the insurance companies using their money and political influence to unfairly change the laws to protect their pocket books at the detriment of innocent people injured by the carelessness of others who they believe deserve special treatment because it says M.D. after their name.

Missouri's tort reform act that was also signed into law in 2005, has lower damage caps of $350,000 (which can not be adjusted for inflation) as well as several evidentiary rules that improperly tips the scales of justice in favor of insurance companies. A few examples. the collateral source rule, the defendant can get in evidence that the victim had insurance coverage or other financial support to help pay the bills, but the jury cannot be allowed to know the defendant has liability coverage, to even mention it or imply it is grounds for a mistrial. The other examples are presumption of bills paid as damages, requirement of a certificate of merit by a specialist in the exact same field for filing a Missouri Medical Malpractice case, venue rules as the place of injury as the only venue for the cause of action, and the list goes on, not even to mention the changes to Missouri's Workers Compensation laws.

Hopefully some cases facing the same issues for Missouri's 2005 Tort Reform act will start to raise these same questions and strike portions of the Tort Reform act as unconstitutional as well. However, the cases have to work their way through the system but we should start seeing them soon.

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As a patient you are entitled to informed consent before any medical procedure, generally, this included the specifics of the procedure, the risk factors, and the complication rates. This is a patent's way of protecting themselves from undergoing a procedure they may find too risky, but should also be a way of knowing the risk of medical malpractice via the doctor's competency. Many people may find it hard to believe, but doctors are people too, and people sometimes lie or conveniently fail to disclose past problems.

A St Louis Missouri doctor performed a colonoscopy on a local man who claims he almost died based on t he negligent performance of the procedure. More importantly, the Doctor was on probation for drug and alcohol abuse. A fact not disclosed to the patient, but should have been. A fact known by the hospital, but they allowed the doctor to perform surgery anyway. Probation after dosing off and becoming confused when treating patients; additionally, he was in drug rehab twice. See "FOX Files: Doctors on Probation".

I recently handled a Missouri medical malpractice case wherein a year into the case we finally got the doctor to disclose that his privileges were revoked at a local hospital, a fact he never disclosed to the patient or the family. Additionally, the doctor tried to conceal from us the fact that his license to practice medicine was restricted preventing him from performing gastric bypass and bariatric surgery in Missouri due to several deaths and serious complications that the Missouri Board of Healing Arts Disciplinary Commission found were the result of negligence and incompetence. The doctor knew it and the hospital knew it, but the gastric bypass patients and their families did not and this doctor performed 100s of complicated and high risk bariactric surgeries every year until he was restricted by the State preventing him from doing them at all, something the hospital would never do because it would cut into their bottom line. The family would have never known had they not contacted a Missouri Gastric Bypass Malpractice Lawyer.

How do you know of your surgeon is in good standing? Specifically ask him or her if they have ever been sued before, if they have ever had their license to practice medicine suspended, revoked, or restricted. Ask them if they have ever had their staff privileges suspended or revoked. Check them out through the Missouri Board of Healing Arts and actually call as many times the information is not seen online. Most doctors have a good track record, but their are a significant number that still practice that do not fully disclose or disclose at all their past problems.

Currently there is no law requiring a doctor to notify a patient of State disciplinary action. The State's excuse is that enforcement would be too difficult, what? enforcement too difficult so let's not even pass the law at all? Sounds like the medical field protecting their own to me, at every patients' risk.

Physician Background Check - HealthGrades.com

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In 2007, there was a confidential settlement of a medical negligence case. Suit for the alleged negligent failure to timely diagnose and surgically treat complications following a gastric bypass (or stomach staple) procedure, settled for the sum of $3.5 million against the bariatric program of a hospital.

Additionally, we settled with the surgeon for his medical malpractice insurance policy limits of $1,000,000.00 Per confidentiality agreements names of parties and specifics of the case cannot be revealed.

CT Scan showing Leak from Staple Line
Arrows show leak abcess
A common complication that must be treated

Co-counsel on the above case was Robert Pedroli of Pedroli and Gauthier

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Posted In: Injury Law , Medical Malpractice , Gastric Bypass Malpractice , Wrongful Death , Our Injury Cases , Verdicts & Settlements

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In a previous entry I discussed the applicability of tort reform on medical malpractice actions in Missouri. See MISSOURI MEDICAL MALPRACTICE AND WRONGFUL DEATH ENTRY

Specifically, I discussed a case I am handling where we filed the wrongful death case as a result of medical malpractice prior to Missouri Tort Reform which went into effect in August 2005. Based on discovery we added an additional party after the tort reform bill went into effect. The new defendant, a medical group named Southwest Medical Center, claimed that tort reform defenses should apply to them because they were added after tort reform.

As previously discussed, the Judge denied a change of venue motion asserted by the medical group holding that tort reform did not apply to their case because there was not a new cause of action and therefore the law at the time of the original filing applied.

I was waiting on an additional Order from the Court ruling on our Motion to Strike the Affirmative Defenses of the medical group. Just recently we received that Order and as expected the Judge Ordered that the medical group's affirmative defenses based on the new tort reform laws must be stricken from their pleadings.

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In early 2005 we filed a medical malpractice and wrongful death claim against an area hospital and surgeon as the result of the death of patient after gastric bypass surgery. In the fall of 2005, after tort reform went into effect on 8/29/2005 radically altering medical malpractice laws in Missouri, we added a medical group that we discovered was the surgeon's employer.

Prior to tort reform venue was in the county where the negligent medical treatment occurred, however, post tort reform medical malpractice wrongful death cases was in the county where the first medical treatment for the medical condition was received. Additional, tort reform gives health care providers additional affirmative defenses that make pursuing these case very difficult under the new laws.

So the question in our case became, whether or not adding the medical group after tort reform constituted a new cause of action and thus requiring the application of the tort reform laws to the newly added defendant.

Missouri Statute §538.305 provides that the new medical negligence Tort Reform statutes "apply to all causes of action filed after August 28, 2005." Therefore, is the Amended Petition adding the medical group the same cause of action as the original cause of action, that we filed prior to tort reform?

The Judge in our case ruled in our favor stating that the basic operative facts have not changed and therefore adding the new defendant after tort reform was not a "new cause of action"and therefore the new tort reform laws do not apply to our case. This is a critical ruling and very helpful to Plaintiffs in Missouri pursuing cases filed around the time of tort reform. The Judge ruled that venue does not change, effectively ruling that the new statutes do not apply for any of the tort reform based affirmative defenses raised which would severely hamper our clients' claims.

Thus, I expect the Judge to rule in our favor again and strike the post tort reform defenses raised by the medical group; mainly the non-economic loss caps and critical evidentiary rules.

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You go to the hospital emergency room, and the attending doctor is negligent, resulting in an injury or, even worse, a relative dies. If your injuries or a relatives death warrant more than 1 million dollars you better hope the doctor is an employee or agent of the hospital, the deeper pocket. Chances are, he is not an employee but just on staff with privileges. This poses problems in serious injury and death cases because oftentimes 1 million, the amount of insurance most doctors carry, is not enough. A vigilant injury lawyer must find out, is the hospital's insurance available to compensate for the wrong?

Missouri courts have listed several factors to aide in deciding whether or not a doctor is acting as an agent of a principal, and therefore, within the course and scope of the agency with a hospital or health care organization. The factors are listed and applied in Keller v. Missouri Baptist Hospital, 800 S.W.2d 35, 38 & 39 (Mo. Ct. App. 1990) and include the following:

A. Control over the physician’s practice;
B. The contract requires full time employment;
C. The parties to the contract contemplated a long term relationship;
D. Full time employment by one employer;
E. Right to terminate physician per the agreement; and
F. Principal undertaking to provide medical malpractice insurance.

If these factors applied to an individual case demonstrate that the doctor was an agent of another entity and acting within the course and scope of his agency, then yes, more insurance coverage is out there.

I have handled this issue before and the determination is very fact specific. Healthcare organizations are legally separating themselves from the doctors that a lay person would think is an employee or agent in order to avoid and limit legal liability for their mistakes. With the addition of the 2005 Tort Reform laws passed by Gov. Blunt, the desired effect of shielding health care professionals from liability for their negligence is quickly becoming a dire but true reality of doctors and hospitals being above the law.

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We filed a Missouri medical malpractice and wrongful death case against a defendant doctor and hospital prior to the new tort reform statutes that went in to effect on August 28, 2005. After August 28, 2005 we added a third medical malpractice and wrongful death defendant after discovery revealed the doctor was an employee of a Medical Group. Thus the Medical Group is responsible under agency theories. We settled the case with the doctor and the hospital recently and are still pursuing the employer. The employer is trying to claim that since we added them after the tort reform provision went into effect and the other parties have been dismissed venue needs to be redetermined, mainly because they want the case out of St Louis City and moved to St Louis County.

This case or "cause of action" arises from one set of operative facts that the doctor failed to timely diagnose and treat post operative complications of the decedent which lead to his untimely death. The original suit was filed prior to August 28, 2005. Discovery revealed that the defendant doctor was an employee of defendant Medical Group at the time of the medical negligence and that he was working within the course and scope of his employment with the group.

Section §538.305 provides that the new medical negligence Tort Reform Statutes "apply to all causes of action filed after August 28, 2005." The issue is, whether the amended Petition adding the Medical Group is the same cause of action as the original cause of action. Therefore, the term "cause of action" becomes critical to the analysis. This term has been given different meanings by different courts in varied contexts. See lA C.J.S. Actions §14 (2005).

In Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W 3d 315, 318 (Mo. banc 2002), the Supreme Court defined cause of action using the definition given in Blacks Law Dictionary, as a "group of operative facts giving rise to one or more bases for suing." Under this definition, it is apparent that Plaintiffs’ Amended Petition adding the Medical Group raises the same facts for suing under the same theories. The Court continued to state that “ a cause of action remains the same even tough additional or different theories of evidence or law might be advanced to support it. Id. The term “cause of action” refers to the negligent act or omission. State ex. rel. Burns Rowe v. The Honorable Carolyn C. Wittington, case # SC87962 (Mo 2007).

In Collins v. Burg, 996 S.W. 2d 512 (Mo. App. E.D. 1999), the Court noted that the test whether a cause of action is the same involves not only whether the nucleus of operative facts is essentially the same, but also whether the parties necessary to sustain the claim are the same. Id at 515.

In our case, the operative facts are the level of care rendered by the doctor while in the course and scope of his employment. In the original Petition, it is alleged that the doctor acted negligently and now the actual employment of doctor by Medical Group is undisputed, the only dispute is course and scope, not actual employment.

The Medical Group was not "necessary to sustain the claim." Causes of action have long proceeded and juries have long been instructed on the liability of the principal for the conduct of the agent without the agent being a party. Therefore, the new laws do not apply because this cause of action was previously filed. The addition of the Medical Group as a Defendant was not necessary and no theory of liability is raised in the amended Petition, which was not raised in the original petition.

Continue reading "Missouri Medical Negligence and Wrongful Death - Venue after 2005 Tort Reform - Case Filed before Tort Reform and Added Party After Tort Reform - Does the New Venue Statute Apply? " »

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Wrongful death personal injury practice covers cases where families have suffered the tragic lose of a loved one. In one case our client died as the result of a surgeon's failure to treat post op complications about 2 weeks after a gastric bypass surgery. The doctor was enabled by the sponsoring hospital that aggresively advertised the procedure across the midwest and loaded him up with 100s of surgeries per year. The case is still pending against several other defendants, including the hospital, and we expect the case to settle for over 5 million dollars.

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M.A.E. v. Dr Smith, M.D. (confidentiality agreement), Missouri 2006

Medical Malpractice settlement after my client underwent a de Quervain's release, a simple outpatient procedure designed to relieve pain caused from injured tendons at the base of the thumb and wrist. The Dr. negligently cut 90% of the siatic nerve when making the incision, reducing our clients ability to feel the back of her hand and causing a numbing sensation.

My client incurred nominal additional expenses and lost wages as a result of the doctor's negligence. There was a zero offer from defendant to settle the case until 2 days before trial and the case was settled for $60,000. Additionally, because the underlying injury that required surgery in the first place was work related, we settled her work comp case for medical bills plus $20,000.

This was not a record breaker, but given the nature of the injuries it was definitely a victory. The primary reason any offer was made at all on the case was that we destroyed the Defendant's medical expert in deposition the week before trial. He is the type of doctor that believes most, if not all legal cases against doctors are frivolous, in the deposition he all but admitted the doctor was negligent.

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Nursing negligence caused my client to suffer 2nd Degree burns on his legs when a home health nurse negligently allowed his shower water to get too hot. Daniels is parapalegic and needs assistance in and out of the shower which includes the duty to set the water temperature, especially due to Daniel's lack of feeling in his legs.

As a result Daniels was treated for his burns and endured several infections through the burns causing a significant impact on his health. We were able to secure a significant settlement for Daniels just a few weeks before trial and after consistent zero offer from the insurance company as they claimed Daniels burned himself for monetary gain and that he lacked feeling in his legs and therefore suffered only a little.

Our medical expert was highly critical of the procedure the home health nurse followed and her lack of oversight during the shower preparation process. The grueling discovery process finally revealed enough evidence to show that despite any desperate claims of self infliction of the wounds, there was so much evidence of negligence established by us that they had to settle or risk a potential multi million dollar verdict after a trial.

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