Missouri Injury Lawyer Blog

One frequent problem for St. Louis medical malpractice lawyers is that clients don’t understand that their claims have a deadline. In every state, including Missouri and Illinois, we have laws called statutes of limitations that are deadlines for filing a lawsuit; they usually run from one to four years and can be extended under special circumstances. Failure to meet this deadline generally means you cannot bring your claim at all, no matter how valid it might be. This was nearly the case in State ex rel. Holzum v. Schneider, in which the Missouri Supreme Court ruled that Eric Katz could not sue various medical defendants for medical malpractice in the death of his mother. The Missouri Supreme Court’s ruling means Katz may pursue his claim only against one defendant.

Alverna Katz fell and hit her head on October 1 or 2 of 2005. She died in the emergency room at Barnes-Jewish St. Peters Hospital. Three years later, on the evening of October 2, 2008, Eric Katz filed his wrongful death and medical malpractice suit against Washington University Medical Center, Barnes-Jewish and John and Jane Doe, as medical providers. Attorneys for Katz said they rushed the lawsuit after the plaintiff contacted them 24 minutes before the clerk’s office would close on the last day to file. More than two years later, Katz filed an amended petition dropping Washington University Medical Center and adding three individual doctors, plus BC Emergency Physicians. The new defendants moved to dismiss because the statute of limitations had expired. After that motion was denied, they appealed to the state Supreme Court for a writ of prohibition keeping the trial court from moving forward.

On appeal, the Supreme Court considered whether the action against the new defendants was “commenced” before the statute of limitations ended, or whether the Doe and Washington University defendants could stand in for the new defendants on the amended petition. Court rules allow plaintiffs to name new defendants, as long as new defendants are given notice “within the period provided by law for commencing the action against the party and serving notice of the action.” That is, plaintiffs wishing to change who they are suing must give notice to the new defendants within the normal time allowed to serve papers for the original complaint. That did not happen with the Katz claim, the court said. Nor were the John and Jane Doe defendants enough to give the new defendants adequate notice, because they were too vaguely described to provide adequate notice to the actual defendants that they were being sued. Thus, the amended petition does not reach back, and the new defendants were granted permanent writs of prohibition keeping them out of the case.

This decision is not necessarily fatal for the medical malpractice lawsuit brought by Katz, but as a Missouri medical negligence attorney, I know it could cripple his case considerably. By limiting who Katz may sue to just one correct defendant, the court has certainly eliminated the number of people who can be held legally and financially responsible. Depending on the facts of the case, it may also have eliminated the people most directly responsible for the care of Alverna Katz. To make matters worse, it’s likely that this wouldn’t have taken place if the attorneys for Eric Katz had had more time to research the facts of the case and prepare their lawsuit. This is why southern Illinois personal injury lawyers like ours are very, very conscious of statutes of limitations. We want to do the best job we can for our clients — but sometimes, deadlines make that difficult or bar the case altogether.

Continue reading "Plaintiff May Not Add New Defendants in Malpractice Suit After Statute of Limitations Has Passed – State ex rel. Holzum v. Schneider" »

The family of a man who died after five hours inside a police cruiser has accepted a settlement offer made by the city of Punxsutawney, and the case has been dismissed with the acceptance of the settlement. However, the decision has not been made about what to do with the officer who originally incarcerated the man in his cruiser.

Stephen Obbish was found intoxicated and passed out on the floor of a store in Punxsutawney in 2009. Deciding to let him sleep it off, the police moved Obbish to a cruiser car and left him in the back. They checked on him every so often for five hours, but at the end of the five hours discovered he had died in his sleep.

Ultimately the county elected to settle the case for $250,000 paid to Mr. Obbish's family. They also issued an apology to the family through their representative, and pledged to develop new guidelines for incarcerating people. Special emphasis is to be put on intoxicated suspects or people who might need medical attention.

What is also interesting about this case is the parallel case the county has brought against the officer who made the original detention, Detective Brian Andrekovich. Andrekovich was fired following the decision, but made an appeal which he won. The county in turn has appealed that decision, lost this motion, and is trying to appeal to a higher court. Andrekovich remains off the job at this time.

The county contests that Andrekovich knowingly made a bad call when he left Obbish in the car. However, Andrekovich and his attorneys argue that the policy of the county police is to leave such situations up to the judgment of the officer in question. Only after the fact did the county insist that Obbish should have received medical treatment, and thus the firing is unfair. This case has certain implications: If Andrekovich loses, it essentially represents an attempt by the county to wash its hands of responsibility for creating a culture in which an officer felt this kind of behavior was acceptable.

As a Missouri auto accident lawyer, I sometimes use a practice called “stacking” to increase the amount of money my clients are eligible to recover. Stacking means applying more than one insurance policy to the same accident. This might take place if the driver carried one insurance policy for each vehicle in the home, or if he or she had coverage for a business as well as personal coverage. For accident victims hit by someone whose primary insurance policy won’t cover the entire cost of the injuries the crash caused, this can help. However, insurance companies dislike the extra cost of stacking policies, and have started including anti-stacking clauses in their policies. Those clauses were put to the test in the Eighth Circuit’s recent decision in Marie DeMeo v. State Farm Mutual Automobile Insurance Company.

DeMeo was crossing the street on foot in a marked crosswalk when she was hit by a pickup truck driven by Patrick McGinness. The pickup was owned and insured by McGinness’s daughter. DeMeo sued in Missouri state court and won a judgment of $350,000, but the daughter’s insurance company had a policy limit of only $100,000. After collecting that, DeMeo sought to recover from McGinness’s four auto insurance policies — one for each car he owned. These covered him for accidents driving a non-owned car, but included anti-stacking provisions. State Farm, the insurer, paid DeMeo only the limit of one policy, which was $50,000. DeMeo sued to stack the other policies and the federal district court granted summary judgment. State Farm appealed.

On appeal, the insurer argued that the district court was wrong to find that the three policies at issue were “excess coverage,” thus rendering the clear anti-stacking provisions ambiguous. The Eighth distinguished this case from earlier Missouri appeals cases, which involved clauses saying the coverage was in excess over “any other collectable insurance.” In this case, by contrast, the State Farm policies provide that their coverage are excess only over insurance on a “non-owned car.” This is clear and does not create the ambiguity that the district court cited, the Eighth said. Thus, the district court was wrong to find that the contract was ambiguous enough to justify ignoring the unambiguous anti-stacking clause, and it denied DeMeo the chance to stack them. It declined an opportunity to clarify how the situation could be addressed through Missouri law on minimum coverage.

This decision denies DeMeo the full extent of the damages she won, which always disappoints me as a St. Louis car accident attorney. Ideally, everyone who drives should carry more insurance than the state-mandated minimum, to avoid situations like this. Unfortunately, this is not practical for every budget and every vehicle, which means people can be left without the money they need to be fully compensated for an accident. The money has a serious purpose; people injured in car wrecks can be very badly injured, which often leads to high hospital and followup medical bills — even with health insurance. Part of my job as a southern Illinois pedestrian accident lawyer is to help victims collect the best possible settlement for their injuries.

Continue reading "Injured Pedestrian May Not Stack Auto Insurance Policies With Express Anti Stacking Clauses – DeMeo v. State Farm" »

A wrongful death suit has been filed in the matter of a fatal June 30 wreck that occurred in Pulaski County, Missouri.

Around 10 p.m. on the day of the wreck, 52-year-old Stephen Huttinett was killed when his Ford truck collided with a flatbed trailer being pulled by a dump truck. The accident also severely injured his wife, Sharon Huttinett, who was a passenger in the vehicle at the time. The lawsuit has been filed by unnamed parties on Sharon's behalf.

The suit alleges that the vehicle was not maintained or secured properly in the time preceding the accident. Reports indicate that the flatbed had no working air brakes nor rear lights, both of which could have helped prevent the collision. Further, the flatbed was apparently not properly secured with towing chains at the time of the impact, leading it to break away from the truck and cause the fatal accident.

Huttinett was apparently killed at the scene, in part due to the speed at which the vehicles were traveling on the state highway at the time of the impact.

Neither attorneys for the defense nor the state Highway Patrol are commenting on the matter. The latter, however, are investigating the case and collecting information about the crash even now. No word has yet been released on when the first hearings on the case will be held, nor is there any indication what defense the defendants will be using. Kenneth Helton and Douglas Sloan of Sloan Excavating have been charged as defendants in the case. Helton was driving the truck at the time of the accident, and as a passenger in the vehicle it is expected that Sloan would have helped secure the trailer before they set out.

Huttinett is survived by three daughters, ages 11, 13 and 27. He and Sharon were married for 13 years at the time of the accident. He was also an Eagle Scout, and volunteered in the scouts as an adult.

Part of my job as a Missouri injury attorney is to request fair compensation for “loss of consortium” to spouses, as well as the losses of the person who was directly injured. This can mean any practical loss, like the loss of someone to do yard work, as well as emotional losses. In Kingman v. Dillard’s Inc., the decision focused on a woman’s lost ability to care for her quadriplegic husband. Paula Kingman successfully sued a Dillard’s store in Missouri after a hanging clothes rack fell and permanently injured her shoulder. The injury meant she could no longer be the primary caregiver for her husband, Calvin Kingman, who needs daily help moving to avoid bedsores, bathing, dressing and more. Dillard’s challenged the award of money to Calvin for the loss of his wife’s services.

Paula was shopping when a clothes rack came loose from the wall and fell on her. She reacted in a way that twisted her shoulder, developing pain, a limited range of motion and a popping/catching sensation. Despite pain medication, immobilization, physical therapy and three surgeries, Paula never healed entirely. Three different doctors told her she could no longer lift or move her husband, who weighs 300 pounds, because of the injury. She also had a series of previous injuries, two from car wrecks that did not directly harm her shoulder, and one workplace injury that did harm her shoulder. She continued to be the primary caregiver for Calvin until her Dillard’s accident. After a bench trial on the Dillard’s incident, she was awarded $186,000 for her injuries and Calvin was awarded $1 million for professional care. Dillard’s appealed, objecting to the amount of Paula’s award and the loss of consortium award to Calvin.

The Eighth Circuit affirmed in part and reversed in part. Dillard’s argued that Paula should have been awarded less because her shoulder injury was preexisting, but the court disagreed. An expert at trial testified that her previous injury was to shoulder nerves, not to the muscle, as the Dillard’s injury was, and another previous injury had healed. And even if she was predisposed to shoulder injuries, the court found that Dillard’s still had a responsibility to compensate her for aggravating her problems. However, the Eighth also found that Missouri law on loss of consortium claims does not allow awards for lifelong nursing care. It noted that no court in Missouri and most other places had addressed the issue, and declined to expand Missouri law. It also pointed out that loss of consortium awards are not generally larger than awards for the underlying injury. Thus, it upheld the award to Paula but remanded the award to Calvin for the district court to reconsider.

As a St. Louis personal injury lawyer, I would like to see Missouri courts take on this issue. The Eighth was not insensitive about the losses to the Kingmans caused by Paula’s inability to care for Calvin. Indeed, it suggested alternative theories of loss of consortium that might expand the award to Calvin without encompassing professional nursing services. However, it did not want to make new law in Missouri, correctly deferring that job to Missouri courts themselves. Thus, Missouri appellate courts may be able to expand loss of consortium claims for the thankfully rare occasions when the spouse of a very disabled person is injured through someone else’s negligence. It may sound like a small matter of law, but as a southern Illinois spinal injury attorney, I know it matters a lot to couples like the Kingmans.

Continue reading "Eighth Circuit Sends Jury Award Back in Case of Injury at Work – Kingman v. Dillard’s Inc." »

Returning to the wrongful death case of Ereck Plancher once more, it seems the case has finally been settled. Following closing assignments by the Athletic Association and Plancher's family, the jury returned a verdict that UCFAA was negligent in Plancher's death. His family was awarded $10 million in recognition of the family's loss and in an attempt to repay them for three long years of grief in trying to resolve the situation to their satisfaction.

The jury did not find the association guilty of the greater charge of gross negligence, which would have allowed the Planchers to collect even more in damages. However, the family's $1.5 million in court costs spent to date will have to be paid by the association as well. It is a decisive win following a case that consisted of contentious testimony, conflicting evidence and reports — even some situations of patently obvious fatuity.

In particular, the winning actions seemed to come from Plancher's teammates at the time of his death. They pointed accusations in the direction of Coach O'leary, saying he had singled out Plancher for a lack of effort during a practice. They argued that the coaches deprived the team of water or other drinks following the practice, contributing to the problem.

There was also strong evidence that the association had information that Plancher suffered from sickle-cell condition, which can be aggravated to life-threatening levels under serious duress such as the physical exertion of a football practice. Denying rehydration would only compound the issue, and indeed the autopsy showed that Plancher's death was a result of this condition. Yet there was the rather damning testimony from one of the coaches that the association staff "didn't recall" informing Plancher that he had the condition.

Faced with a number of eyewitnesses contradicting O'leary's testimony about the events of that day, as well as the evidence that the association did not perform due diligence in informing Plancher of his condition, the verdict reached was clearly all but inevitable.

Here in Missouri, we have a law requiring prospective medical malpractice plaintiffs to file a special affidavit, saying a qualified health care professional agrees that the defendant failed to use reasonable care, before they can proceed with their cases. As a St. Louis medical malpractice lawyer, I thought this had an interesting result in Devitre v. The Orthopedic Center of Saint Louis, a recent Missouri Supreme Court opinion. Sohrab Devitre sued the center and Dr. Mitchell Rotman for injuries he allegedly sustained during an independent medical exam. Rotman was not Devitre’s usual doctor; he had been hired to examine Devitre as part of an underlying auto accident lawsuit. (Devitre later won a small judgment in that case.) Devitre claimed Rotman intentionally forced him to move his injured arm and shoulder past their range of motion, causing pain and further injuries.

Devitre’s original complaint against Rotman and the Center explicitly said he was never a patient of Rotman’s, and that he was suing for intentional assault and battery, not medical malpractice. The trial court in St. Louis County dismissed the case because Devitre failed to file the health care affidavit. Devitre re-filed with substantially the same case. Rotman’s answer agreed that Devitre was never a patient, but said he intended to use medical negligence law in his defense. The trial court eventually denied Devitre’s motion to exclude those defenses and granted defendants’ motions to dismiss for failure to file an affidavit. Devitre appealed and the state Supreme Court granted transfer from the Court of Appeals.

On appeal, Devitre argued only that the health care affidavit requirement did not apply to his case, and thus the dismissal was in error. He said he did not fall within the meaning of “patient” within the broader statute, because he was receiving an independent medical exam that he was compelled to receive by the auto accident claim. The Supreme Court disagreed. Because the statute does not define “patient,” it looked to the dictionary definition of the word, which included (in Webster’s Third New International Dictionary) “a client for medical service.” This applied to Devitre, the court said. Furthermore, the court said Rotman’s statement that Devitre was not a patient was not binding because it was a point of law, not fact. Finally, the court found that Devitre’s claim was only an assault and battery claim on its surface; its essence was still a medical malpractice claim. Thus, it upheld the dismissal of Devitre’s claim. Judge Teitelman dissented on the “client” issue as well as the issue of whether medical malpractice was the true claim at issue.

While this dismissal is bad for Devitre’s claim, as a Missouri medical malpractice attorney, I think it has promise for future medical malpractice plaintiffs. In making this ruling, the court found a limited doctor-patient relationship between Rotman and Devitre, even though Devitre did not normally see Rotman. This could protect people who are injured in similar independent medical exams in the future, which could include exams related to new jobs, travel injuries, emergency rooms, workers’ compensation claims, workplace accidents and more. In all cases, those doctors and patients are new to each other, raising the chance of misinformation or confusion; some of those doctors are paid by people adverse to the patients’ interests. As a southern Illinois medical malpractice lawyer, I believe patients should always have the protections afforded by medical malpractice laws, even if they don’t use them — because knowledge of liability can change how doctors make decisions.

Continue reading "One-Time Exam Makes a Patient Under Missouri Medical Malpractice Law – Devitre v. The Orthopedic Center of Saint Louis" »

A wrongful death lawsuit filed against the fraternity Sigma Alpha Epsilon last Friday has named twenty former members of the fraternity as well as the brotherhood itself. The suit is seeking damages amounting to $25 million.

George Desdunes, a pledge member of SAE, was found on an SAE couch on February 25 and died soon after at Cayuga Medical Center. The lawsuit argues that Desdunes was given an extremely large amount of alcohol as part of an SAE pledging event. After being given so much that it was clear he was in need of medical treatment, Desdunes was instead tied up and left on the couch until he became severely ill. The lawsuit specifically claims that Desdunes was "left to die" on the couch.

The lawsuit was filed by Marie Lourdes Andre, Desdunes' mother.

"With the death of my son, I find some comfort in knowing that this lawsuit may bring about changes in fraternities that will prevent other families from suffering as I have," said Andre in an Associated Press interview.

A number of former members, including the SAE former president and vice president, were named as defendants in the $25 million lawsuit. Three others that were named have already been charged with misdemeanors in Desdunes' death as well.

The event in question involved Desdunes and others participating in a mock kidnapping. The captives of the event were tied at the hands and feet, and quizzed about trivia regarding their fraternity. In the event of a wrong answer, they were given drinks of alcohol or flavored syrup as punishment.

Reports on Desdunes' blood alcohol content vary. According to court documents, it was recorded at .35, whereas Desdunes' family attorney insists that it was .409 at the time of his death. Either way, it is significantly above the legal intoxication limit of .08.

Cornell University, where the incident took place, suspended recognition of SAE in response to the incident, and the SAE national organization suspended all members from Cornell until such time as they graduate.