After a divided Supreme Court of Missouri found the legislature’s $350,000 statutory cap unconstitutional 2 years ago, opponents of letting juries decide just how victims should be compensated said the sky was going to fall in Missouri. Last September, Missouri Supreme Court nixed a statutory limit on the amount of punitive damages that can be awarded against defendants. Tort reformers screamed doctors would flee, malpractice rates would skyrocket, and no one would want to do business in Missouri. This never happened. But now, some in the Missouri legislature want to pretend that never happened and want to take another shot at caps.
A jury awarded a Maryland Heights man and his wife $6.4 million in a medical malpractice lawsuit against the man’s physician after he suffered a stroke in 2007. The plaintiffs alleged the stroke could have been prevented if the physician had properly diagnosed and treated a bacterial infection on the man’s heart valve. The physician had diagnosed the plaintiff with mitral valve prolapse (a condition in which a heart valve does not close tightly, resulting in a blow flow backward into the heart) in 1996. The condition continued to show up on tests until 2001. The plaintiffs alleged the physician did not order any follow-up echocardiograms (tests which would properly show the condition) after 2001 and the condition was not brought up again by the physician as if it no longer existed. In mid-2007, the plaintiff became very ill with fatigue, loss of appetite, and abdominal pain, which he brought to his physician’s attention. The physician referred the plaintiff to multiple doctors but did not refer him to a cardiologist or order any tests that would examine his heart. One month later, the plaintiff’s wife requested the physician admit her husband to a hospital because of his deteriorating conditions. The physician allegedly responded to the wife’s request by telling her to wait for the test result from a hematologist. The plaintiff suffered an acute stroke two months after the initial complaint which resulted from the infection on his heart valve. The stroke left the defendant with restricted mobility on the right side of his body, damage to his short term memory, and difficulty processing words. These disabilities have resulted in the plaintiff being unable to work. The attorneys for the physician and medical practice argued a lack of evidence that could prove negligence or negligence that caused the plaintiff’s injuries. The jury found in favor of the plaintiffs with a $6.4 million verdict; a verdict that is noted as one of the largest medical malpractice awards in the state of Missouri.
Stroke Misdiagnosis Verdicts and Settlements
Last week, the Court of Appeals of Missouri decided a subsequent remedial measures case that I think is of interest to all personal injury lawyers no matter where you practice.
The subsequent remedial measures rule is one of those law school standards that any second-year student can explain in about two minutes. Despite its seeming simplicity, as we see in Emerson v. Garvin Group, the rule is more complicated to apply.
Plaintiff was employed by Raven Industries and was responsible for performing electrical assembly work. Due to the nature of the company’s work, the electrical plant floors had to be stripped, waxed, and buffed to comply with static electricity issues. This work was done by the Garvin Group.
I wrote yesterday that about a Michigan court that threw out a slip and fall lawsuit in a convenience store. Today, I’m writing about a Missouri Court of Appeals decision to overturn a entry of summary judgment for a convenience store in an premises liability lawsuit.
In this case, the plaintiff claims she hurt her ankle leaving a Baumer’s convenience store after slipping and falling on a hole. Her reason for not seeing the hole that she tripped on was that she was carrying the beer and newspaper that she bought at the store. Apparently, her foot went into a hole and turned sideways as she stepped off the curb outside Baumer’s entrance.
Defendant sought summary judgment contending plaintiff did not see any unsafe condition and really does not know what caused her fall. The trial court granted the motion.
A St. Louis jury returned a defense verdict in a medical malpractice lawsuit against a hospital and a nurse involving oxygen deprivation during surgery that allegedly caused a 9-year-old child’s brain damage.
This may be a case where problems in the damages claim may have bled over into liability. The child had developmental problems before the time of the alleged malpractice and it sounded like the battlefield in the case was over damages as opposed to liability. Defense lawyers maintained that oxygen deprivation does not necessarily cause brain injuries and did not in this case. But the jury came back with a straight defense verdict.
Strange thing about this case: many of the treating doctors were in Israel which must have been a logistical nightmare.
CNN reports that at least 50 hurt and two people were killed in truck accident involving two school buses and a truck on I-44 outside of St. Louis, Missouri.
Tragic bus accidents like this often obscure the fact that school buses are statistically an extremely safe way for children to travel to school, safer than being driven by their parents. This fact does nothing, of course, if your children were involved in this awful crash. But parents also do not want to overreact to high profile stories like this and take their kids off school buses out of safety concerns.
Justice Diaz, while controversial, was a loss for personal injury accident and medical malpractice victims in Mississippi. But Mississippi voters also threw out Chief Justice Jim Smith who upheld verdicts for insurance companies 100% of the time, while ruling to overturn verdicts on behalf of victims 88% of the time. It is is just hard to imagine there is no political bent to this types of rulings – the numbers just jump off the page at you. Challenger Mississippi lawyer Jim Kitchens (a former district attorney). Although he was outspent 2:1, Jim Kitchens’ clobbered Justice Smith 54% – 36%.
- Justice Diaz Loses
- Email from Justice Diaz
A student at Missouri University was awarded $450,000, a jury in Missouri found this week. The student was struck on a bike while crossing an intersection and then hit a second time and dragged by a Columbia Water and Light truck. Jurors determined that the driver of the first car and the City of Columbia were to blame for 25 percent of the accident.
The verdict was for $1.8 million but under Missouri’s comparative negligence law; the defendants are responsible for their portion of 25% of the fault.
There are NuvaRing lawsuits pending in an MDL (cases consolidated around the country in Missouri) and in New Jersey. Even though Organon is a New Jersey defendant, it sought to remove the NuvaRing cases because Organon was not “properly joined and served” under §1441(b) because Organon was not served with a tracking assignment number as required by New Jersey law.
No tracking assignment number? Who thinks of these things? Sure, strictly construed void of any sense of fairness or context, the statute the rule would preclude removal by an in-state defendant who has not been “properly joined and served” at the time of removal. But would a judge be such a foolish hypertechnical slave to the language beyond logic, reason, and the legislative intent of the statute? Thankfully, no. The New Jersey District Court found that strict adherence to the statute’s plain language would defeat the legislative intent and, accordingly, the law should not be interpreted to produce an absurd result.
Get the latest update as of August 2013 in these cases here.
The Missouri Supreme Court ruled in Sides v. St. Anthony’s Medical Center, that plaintiffs in a medical malpractice cases in Missouri may rely on an expert’s opinion that the injury would not have happened in the absence of the defendants’ negligence even without a specific proof of a negligent act. The court adopted the Restatement of Torts rule that if a medical malpractice plaintiff cannot demonstrate which specific act of negligence caused the injury but can demonstrate the potential causes are within the control of the doctor, and the injury would not occur in the absence of negligence, then a medical malpractice plaintiff has jumped over the motion to dismiss/summary judgment hurdle.
The defendant’s medical malpractice lawyer argued that Hasemeier v. Smith, 361 S.W.2d 697 (Mo. banc 1962), an OB/GYN medical malpractice case, was controlling. In that case, the court found that generally res ipsa loquitur is not applicable in medical malpractice cases. The Missouri Supreme Court did not overrule Hasemeier but it may as well have.
The Missouri high court’s ruling, in this case, is consistent with common sense and, as the court noted, the trend in many other states including Kentucky, Nebraska, and New York.