Missouri Injury Lawyer Blog

Merck & Co., a major pharmaceutical company, is facing over 1,000 lawsuits over NuvaRing, a vaginal contraceptive. According to the allegations and numerous reports, NuvaRing has been linked to blood clotting, or venous thromboembolism, and other side effects. This fall, suits filed in Missouri are set to begin. These suits allege negligence on the part of Merck & Co. in failing to adequately warn consumers of risks associated with NuvaRing.

Released in 2001, NuvaRing was marketed as an alternative to oral contraception. It is a flexible plastic ring that releases hormones once inserted vaginally. Reportedly, the blood clotting is caused by the release of hormones which correlates to inconsistent hormone delivery.

A study was released in May, 2012 that apparently indicated NuvaRing was not linked to increased risk of blood clotting that posed a danger to patient health. However, Merck & Co. paid for the study, and other studies conducted do not agree with the one funded by Merck & Co. A study published by the British Medical Journal the very same week indicated a 90% increase in the risk of blood clotting with NuvaRing when compared to traditional oral contraceptives. In June, 2012, the New England Journal of Medicine released a study that found blood clotting was two-and-a-half to three times more likely to develop in women using the NuvaRing. Reportedly, this blood clotting can occur in the legs, lungs, or heart. Yet another study, this one conducted by the U.S. Food and Drug Administration (FDA) suggested that women using NuvaRing are 56% more likely to develop blood clots than women who use older, oral methods of contraception.

Other side effects associated with NuvaRing are pulmonary embolism, deep vein thrombosis, strokes, heart attack, and wrongful death. According to the FDA’s Adverse Events Database, 5,400 reports have been made naming NuvaRing as a suspect. Of these reports, over 1,200 involved pulmonary embolism, 800 involved deep vein thrombosis, 300 were considered life-threatening, and at least 160 involved death.

Merck & Co. should have conducted more extensive research before marketing their product to the public, and patients had a right to be made fully aware of the risks of NuvaRing. Women who believe they have suffered personal injury because of their use of NuvaRing should explore their legal rights and options immediately.

As a Missouri medical malpractice attorney, I was very pleased last year when the Missouri Supreme Court struck down our state’s cap on non-economic damages in medical malpractice cases. Non-economic damages are payments for injuries that aren’t strictly financial. In a medical negligence claim, an economic injury might be the extra medical bills that a medical mistake made necessary; pain would be a non-economic injury. Thus, it’s easy to see that non-economic damages are important to the plaintiffs; in cases involving injuries to children, they may be the primary source of damages. In the case that struck down the damages cap, the Missouri Supreme Court ruled that the cap violated Missouri citizens’ right to a jury trial that determines their damages. Now, according to the Associated Press, it seems likely that no bill will pass the Missouri Legislature this year to change that.

The damages cap was struck down in a case involving severe brain injuries to a baby boy during his birth. The jury agreed that the boy and his mother had been injured, but their financial award to the family was limited because of the state-mandated cap on non-economic damages. The high court ruled that the family had a right to have a jury decide their damages, and also struck down a payment plan set by the court. In response, some members of the Missouri legislature started working on a bill that would reinstate the cap. To avoid violating the decision, the proposed bill would have eliminated the right to sue for medical malpractice under the common law and substituted a state law that created the same right, and then reinstate the cap. Supporters said the cap was a way to control the cost of malpractice insurance for doctors.

Not surprisingly, the law was opposed by advocates for patients. As a St. Louis medical malpractice lawyer, I dislike damages caps because they take away the courts’ ability to make sure the injured person is adequately compensated. Take the example of a man who has the wrong leg amputated, and ends up with both legs amputated because doctors had to repeat the procedure with the correct one. This man would instantly be disabled, a radical life change that would prevent him from doing many things he previously enjoyed. It might prevent him from earning money and it would certainly require more medical intervention than otherwise—both of which are economic damages. But it would also certainly trigger serious non-economic damages like loss of quality of life. A damages cap takes away a jury’s ability to decide how to value that loss, and in cases with few economic damages, may deny any meaningful payment to the victim at all.

At Carey, Danis & Lowe, we represent clients who have suffered serious injuries because of a medical professional’s or organization’s negligence. If a doctor or other professional makes a mistake so serious that it falls below the accepted standards of care for our community, that’s medical malpractice. And if you’re a victim of medical malpractice, you have a right to pursue fair compensation for the injuries that result. In a malpractice lawsuit, you can claim damages for your financial costs and—at least for now—for the full amount of your non-financial but very real injuries, such as a permanent disability. Our southern Illinois medical malpractice attorneys have substantial experience in the complicated world of medical litigation, and we work hard to get our clients the best possible recoveries.

Continue reading "Bill to Reinstate Cap on Noneconomic Damages in Missouri Malpractice Cases Dies" »

When someone is injured in a workplace involving more than one contractor, it can be difficult to sort out who is obligated to cover the resulting damages. As a Missouri workplace injury lawyer, I always start these cases by determining which company is obligated to provide worker’s compensation—and whether there might be a separate cause of action against one of the other companies. In Harleysville Insurance Co. v. PDSI, an injury to PDSI employee Jonathan Hughes took place at the premises of Miller Transporters Inc. PDSI is a staffing agency for transportation firms and Miller was a client; Harleysville is the general commercial liability insurance carrier for PDSI. The district court found that PDSI was contractually required to indemnify Miller for its settlement payment to Hughes, and Harleysville was required to pay PDSI for that cost.

In 2007, Hughes fell ten to eleven feet from a ladder while he was cleaning resin out of a chemical tanker truck’s tank, at Miller’s work site. He had been told to clean it by a PDSI supervisor, but the area was maintained by Miller; most importantly, Miller had failed to provide fall protection equipment or a stairway in this area, though they were available in another area of the facility. The manager of the Miller facility had brought this up to his supervisors, who, he testified, had said they cost too much money to install. Hughes’s fall left him with permanent chronic pain and changed his gait. He sued Miller in state court and eventually reached a $300,000 settlement. Under the 1989 contract between PDSI and Miller, PDSI agreed to indemnify Miller against actions “in any way relating to personnel assigned to Miller.” PDSI, in turn, asked Harleysville to cover the cost of the settlement.

Harleysville refused and sued for a declaratory judgment saying its policy didn’t cover the settlement, and that PDSI was not obligated to indemnify Miller. The district court ultimately granted summary judgment to Miller and PDSI.

On Harleysville’s appeal, the Eighth U.S. Circuit Court of Appeals agreed. The contract between PDSI and Miller clearly says that PDSI will indemnify Miller against personal injury claims, and Harleysville cannot show otherwise by relying on a footnote in a case that is not on point, the Eighth said. On the insurance issue, Harleysville argued that its policy limits coverage to bodily injury caused by PDSI or people acting on PDSI’s behalf, and that this requires proximate causation. The district court found that it required only “but for” causation, a lower standard. The Eighth concluded that the undisputed facts show that PDSI and its employees at least partly caused the injury to Hughes; Chapman was the direct supervisor who asked Hughes to clean out the tank. This interpretation is consistent with the contract as a whole, the Eighth noted, and common sense backs it up. A dissent by Judge Colloton argued that PDSI should not be obligated to cover accidents caused by Miller’s own negligence.

As a St. Louis personal injury attorney, I’m always pleased to see an injured person get the recovery that he or she needs to make ends meet, treat an injury and recover. In some cases involving a dispute over who was obligated to cover an injury, the compensation is in real doubt because not every party necessarily has the money to cover the injury—for example, an individual driver without insurance. But in this case, the question was merely whether the insurance company was going to be forced to assume its contractual responsibilities. In my experience as a southern Illinois accident lawyer, insurance companies frequently attempt to avoid liability for large payments even when, as in this case, the court concludes that the contract is unambiguous about covering the injury. That’s why it’s absolutely vital to have an experienced attorney on your side, who can protect you from being cheated out of the money you need.

Continue reading "Insurer Must Cover, and Employer Must Indemnify Client Against, Workplace Injury Lawsuit – Harleysville Insurance Co. v. PDSI" »

A Missouri medical malpractice lawsuit was filed on April 26, 2013 against SSM and a surgeon for carelessness and negligence. According to the allegations, the patient was supposed to receive a “left-sided craniotomy bypass” on April 4 but received a “right sided craniotomy surgical procedure” instead. Realizing their error, the operating team performed the correct surgery six days after the incorrect surgery.

Regina Turner, the patient, received the procedure at St. Clare Health Center, located in Fenton, MO. Turner, 53, can no longer speak intelligibly. According to the allegations in the complaint, Turner was cognizant, mobile, and capable of caring for herself before the surgery, but following the surgery on the wrong side of her brain she needs care 24 hours a day to fulfill her basic needs and she suffers from anxiety, depression, emotional distress, and disfigurement.

Five years ago, Turner began suffering from a series of “mini-strokes” which affected her speech. Before the surgeries, however, she could be understood by members of her family. The goal of the surgery was the prevention of future strokes.

Though Turner is seeking compensation for the error, her attorney has stated, “I wasn’t trying to single out the doctor. He’s going to be held accountable for what he did. He didn’t try to hide what happened. I’m sure he feels terrible about it. That’s why I didn’t want to name him in the case.”

According to hospital safety experts, wrong-person surgeries and wrong-site surgeries are characterized as “never events,” or events that should never occur when proper vigilance is executed by surgeons and medical staff. The author of “Transforming Health Care,” Charles Kenny, stated that when never events occur, they are usually the result of poor quality control and safety protocols that are lacking. Turner’s lawsuit states that the operating room was set up incorrectly by SSM employees who then “stood by and watched [the neurosurgeon] operate on the wrong side of the plaintiff’s skull and brain when they could have prevented the error.”

Currently, there is no comprehensive cap in Missouri on medical malpractice awards. However, a bill is being considered by the Missouri State Senate that would place a cap in future medical malpractice cases for non-economic damages, such as awards for pain and suffering, mobility loss, and loss of sight, hearing, or consortium.

As a southern Illinois personal injury attorney, I was pleased to see that a student who was a victim of sexual violence will have her day in court. In Lees v. Carthage College, Katherine Lees alleged that Carthage College was negligent in its security measures, which led to the invasion of her dorm room and rape by apparent strangers. Carthage successfully excluded the testimony of an expert in premises security, Dr. Daniel Kennedy, who would have supported Lees’s case. Without the testimony, the trial court granted summary judgment to Carthage because Lees had no case. In this appeal, the Seventh U.S. Circuit Court of Appeals reversed the exclusion of some of Kennedy’s testimony, saying it was not unreliable just because the standards he would propose for college campuses are “aspirational.”

Lees entered Carthage College, in Wisconsin, as a freshman in the fall of 2008. She is hearing impaired and her speech may be difficult for strangers to understand. She lived in an all-female dormitory. In the early morning hours of September 21 of that year, when nonresidents should not have been able to enter the building, two men wearing Carthage shirts entered her dorm room and one raped her. They fled after she managed to punch the second one in the face as he tried to assault her. She withdrew from the college and later sued Carthage and its insurer for negligent security. To establish the applicable standard of care, she sought to introduce testimony by Kennedy, a professor of criminal justice and security administration at the University of Detroit. His written opinion pointed to security defects that meant the school fell short of the standards of the International Association of Campus Law Enforcement Administrators, and noted that Carthage had had five rapes in 2007 and one each in 2003, 2005 and 2006.

After Carthage’s motion, the district court agreed to exclude Kennedy’s testimony as unreliable. The judge cited improper reliance on IACLEA standards, which were aspirational, and said the recent rapes at Carthage did not make Lees’s stranger rape foreseeable because they were acquaintance rapes.

Lees appealed, and the Seventh Circuit ultimately reversed as to some of Kennedy’s testimony. The Seventh agreed with the district court that the IACLEA guidelines are insufficient by themselves to establish that Carthage didn’t meet the standard of care, but they didn’t need to be. Rather, the court said, the district court should have considered only whether consulting them is a sound way to establish an expert opinion in this case. Thus, excluding this part of Kennedy’s testimony was an abuse of discretion, the Seventh said. For this reason, the testimony about the basement door prop alarm should have been admitted. Nor was the district court correct in rejecting the testimony for failure to compare Carthage to similar schools—this could be part of a reliable method, the Seventh said, but is not required. However, the appeals court upheld the district court’s exclusion of Kennedy’s testimony on prior rapes at Carthage, saying acquaintance rape is not comparable to stranger rape. And it upheld the removal of other aspects of his testimony as insufficiently supported by data.

As a St. Louis injury lawyer, I appreciate that this decision will give Lees a chance to make her case in court. Very often in expert testimony appeals, the entire case dies when the expert testimony is thrown out, because expert testimony is required in certain situations—for example, to establish the standard of care in medical malpractice cases. But if the defendant succeeds in getting the expert testimony thrown out, there’s no chance for the plaintiff to save her case by finding another expert. That’s true no matter how much merit the underlying case might have. By preserving the expert testimony here, the Seventh is allowing a jury to decide on the merits of the case Lees will present. As a Missouri premises liability attorney, I believe everyone who has suffered a serious injury like hers should be given a chance to make their case.

Continue reading "Seventh Circuit Permits Admission of Expert Testimony About Campus Safety – Lees v. Carthage College " »

Following the product’s recall, several lawsuits have been filed by individuals who received Stryker ABG II hip implants and suffered personal injury as a result. The defendants in these lawsuits are Stryker Orthopaedics and Howmedica Osteonics Corporation, Stryker’s parent company. Allegations include complications resulting from defective Rejuvenate and Stryker ABG II implants.

In one case filed on February 1, a Texas man alleges he suffered serious injuries and required two surgeries because of the defective implants. On March 31, 2010 the man received a total right hip replacement because of arthritis and osteonecrosis. Because he needed a durable implant and because he was young, the man was allegedly led to believe this particular implant would work well. He received a total hip replacement on February 2, 2011 on his left hip, receiving the same Stryker ABG II implant.

Unfortunately, within months, the implant recipient had difficulty walking and was experiencing pain at the sites of the implants. A voluntary recall was issued by Stryker in July, 2012 for the ABG II and Rejuvenate modular neck hip stems. Reportedly, some devices had failed as a result of heavy metal corrosion and fretting. Allegedly the plaintiff’s doctors knew by this time that high metal ion levels in his blood were being caused by the Stryker ABG II implants and the implants were becoming loose. He underwent a difficult revision surgery in October 2012 to remove the implant from his right hip. He required physical therapy for several months and had to have the implant removed from his left hip in January 2013.

In addition to the Texas man’s claim, his wife has filed a loss of consortium claim. Her husband’s surgeries and the accompanying physical therapy has made it necessary for her to spend so much time taking care of him that she was unable to find employment.

Many individuals who received the Stryker ABG II implant and suffered complications as a result may be eligible for product liability settlements or a personal injury claim.