Missouri Injury Lawyer Blog

Missouri Medical Malpractice awards for non-economic damages for all cases filed after August 2005 were capped at $350,000.00 total for all defendants. This law protects the financial interests of doctors, hospitals, and insurance companies at the expense of injured patients. Prior to this law passing Missouri already had medical malpractice caps at approximately $545,000.00 per defendant and the cap was adjusted for inflation. The new cap has no infaltion adjustment.

The effect of this law adversly effects the elderly, i.e., retired, stay at home moms, children and any people who are not working because they generally do not have economic damages other than medical bills. It effectively deprives this group of people of a remedy when the malpractice results in death because there are no future medical expenses and the total recovery is limited to $350,000.00. While this might sound like a lot of money, when a lawyer looks at this as a business decision on whether to take the case the numbers do not add up.

Most lawyers in Missouri take medical malpracitce cases on a 40% contingency fee basis and advance the expenses. The expenses to take a case to trial are usually are $40,000.00 on the low side and up to $100,000.00 depending on the number of experts and complexity of the case. As a medical malpractice lawyer you know that the defendant will rarely if ever settle a case for the maximum amount for which their client could be liable. That means if the case settles for example $300,000.00, you as a lawyer will have to spend $40,000.00 to $100,000.00 for a chance to earn a $120,000.00 fee. Since this law has passed I have regularly turned down what I call a one cap case with limited economic damages. This means as least that a stay at home mom, an elderly parent or a child who is killed as the result of medical neglect is effectively denied a remedy. This law's constitutionality has not yet been challenged but it should. What would be even better is for the Republicans in the Missouri legislature and Governors Mansion be voted out of office and the old caps re-instituted. That way there would still be limits on what a jury could award but a segment of our society would not be effectively denied a remedy.

Posted by Jeff Lowe | Permalink | Email This Post

Posted In: Medical Malpractice

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An Illinois pedestrian killed Thursday night on Interstate 69 has been identified as a Huntington Illinois woman. Police said Betty A. Gilruth, 56, left her broken-down vehicle and was walking south on the highway at the 107 mile marker north of the Illinois Road exit when she was struck by a southbound truck about 8:30 p.m.

The Police reported that they did not know why the pedestrian was walking in the southbound lanes instead of on the side of the highway. Police reported that the truck driver may not have been able to see the deceased walking in the traffic lane because it was dark. The pedestrian was pronounced dead at the scene and a police spokesperson said they are still investigating the accident.

When your car breaks down, you should be prepared. You should have some roadside reflectors or flares to let other motorists know that your car is broken down. If you have a cell phone call 911 or roadside assistance for help. If not, and especially if you are a woman, have a sign that says call for help. In today's world, you cannot be too careful and even though there are many good Samaritans, a woman should not accept help from an unknown man except to have them call the police or roadside assistance. And never walk down the wrong side of the road at night alone.

Posted by Jeff Lowe | Permalink | Email This Post

Posted In: Traffic Safety

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A Southern Illinois auto accident killed two sisters on Interstate 64 near Scott Air Force Base. The accident occurred when an Illinois State Police trooper heading to an accident, was cut off by another motorist, crossed and slammed into an oncoming car.

The Illinois State Trooper Matt Mitchell, 29, was airlifted to Barnes-Jewish Hospital in St. Louis, where he was hospitalized for serious injuries. The injuries were said not to be life-threatening. Mitchell was traveling east on I-64, with lights and siren activated, responding to the report of an accident with injuries and people trapped on Illinois 4.

Near Illinois 158, another motorist cut Mitchell off and he took "evasive action" to avoid a collision, police said a witness reported. Mitchell then crossed the median into westbound traffic, hitting one vehicle head-on. Two other westbound vehicles also were involved in the crash.

Police are asking for the public help in finding the car that cut off Mitchell and are seeking any witnesses to the crash. Anyone who may have seen the accident is asked to call Special Agent David Fort at 346-3766.

An Illinois State Police reconstruction team is investigating the cause of the accident. The patrol car contains what is similar to a black box in a plane, recording such information as speed and how long brakes were applied. That information has not yet been analyzed.

The accident Friday was the third fatal crossover accident in the metro-east in less than a month:

• Lindsey N. James, 20, of Bethalto, was killed in a fiery crash Oct. 25 after her car was clipped by another as they were traveling north on Interstate 255 just south of Collinsville Road, police said. James' car swerved off the highway, crossed the median and was struck by oncoming traffic. She had been married less than a month.

• Waynette Poynter, 31, of Nixa, Mo., was killed and three people were injured Oct. 26, when Poynter, who was traveling east on Interstate 64, crossed into the westbound lanes and struck an oncoming pickup truck at Green Mount Road.

This type of tragedy can be avoided if people pay attention to emergency vehicles and move to the side of the road. Also be sure to wear your seat and drive the speed limit.

Posted by Jeff Lowe | Permalink | Email This Post

Posted In: Traffic Safety

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The manufacturers of Epogen, Aranesp, and Procrit used to treat anemia, strengthened the warnings to drugs yesterday, to warn that the drugs could cause heart attacks, worsen cancer and even cause death.
The changes, were made after they submitted data to the Food and Drug Administration which evidenced that the drugs can be dangerous if overused. The new warnings also state for the first time that the drugs’ risks for cancer patients cannot be excluded even at doses previously considered safe and routinely used.

The drugs are used by about one million Americans a year, mostly people with anemia caused by cancer chemotherapy or kidney failure. Combined sales worldwide were nearly $10 billion last year.

For cancer patients, the new label calls for using the lowest possible dose that allows a patient to avoid blood transfusions, with hemoglobin levels not to exceed 12 grams for each deciliter. “The label gives physicians discretion between 10 and 12,” Kevin W. Sharer, Amgen’s chief executive, said yesterday. “ “This is not a target,” Dr. Richard Pazdur, the director of the agency’s cancer drug office, said about the hemoglobin level of 12. “This is an upper boundary for safety concerns.”

The new labels came after the F.D.A. held two advisory committee meetings to consider the safety of the drugs. The agency had first slapped a so-called black box warning, the toughest kind, on the drugs in March as an interim measure.

For patients with kidney failure, the label calls for hemoglobin levels to be maintained at between 10 and 12. That is perhaps a bit less restrictive than the label in March. But new wording in the label calls for doctors to exercise restraint or possibly discontinue use for patients who do not reach the desired hemoglobin levels after 12 weeks of treatment. Until now, dialysis centers have tended to give such patients very large doses in an effort to raise their hemoglobin levels.

This along with all of the other new warnings and limitations on drugs after they have been on the market demonstrate the weakness in drug safety in the United States. To get a drug approved the FDA does not require studies of a sufficient number of patients to demonstrate safety risk that occurs infrequently. This gap in our drug safety system is part of the cause of all of recent drug debacles such as Vioxx, Bextra, Avandia, Fen Phen, Baycol, etc.... This problem keep on occurring until the system is fixed.

Posted by Jeff Lowe | Permalink | Email This Post

Posted In: Drug Safety

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At 4:30 a.m. on November 9, 2007, Merck agreed to a purported $4.85 billion settlement. The agreement is 69 pages and has not yet been released publicly. At a hearing in New Orleans this morning the terms of the settlement were revealed.

(1) This is not a class action settlement. In order for a law firm to participate in the settlement, they have to agree to submit all of their cases through the settlement process;

(2) In order to qualify for payment under the Settlement a claimant has to prove: (a) Proof of ingestion of Vioxx for at least 30 days; and (b) Proof of having a heart attack, Ischemic stroke, or sudden cardiac death within 14 days of taking Vioxx;

Once a client meets these criteria they are guaranteed of receiving a monetary award under the settlement and the client goes to the assessment phase where they are awarded points or actually demerits for cardiac risk factors such as obesity, diabetes, high blood pressure, hyperlipedemia, age, etc… The client based on the point system is then awarded a settlement amount by the claims administrator. This claims process is to be completed in 18 months, and if the client believes the points were assessed incorrectly they can appeal to a special master.

If the client doesn't qualify for a monetary award under the settlement, they can then certify that the medical evidence they submitted is all the evidence they have and they can have their case tried to a jury. There is also a requirement of 85% participation of all the cases filed, and the 85% participation requirement only applies to cases filed in the MDL, cases filed in New Jersey, cases filed in California and cases filed in Texas.

This certainly does not look like it will end the litigation, but it is the beginning of the end game, How it will play out will be determined in the next couple of years. Nothing moves quickly in the Mass tort business

Posted by Jeff Lowe | Permalink | Email This Post

Posted In: Settlements

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