Missouri Injury Law Blog

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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Posted In: Medical Malpractice

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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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Posted In: Medical Malpractice

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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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Posted In: Medical Malpractice

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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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Posted In: Our Injury Cases , Medical Malpractice

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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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Posted In: Injury Law , Medical Malpractice

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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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Posted In: Medical Malpractice , Gastric Bypass Malpractice

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

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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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Posted In: Injury Law , Medical Malpractice

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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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Posted In: Injury Law , Medical Malpractice

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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.