Missouri Injury Lawyer Blog

Caps or limits on awards for non-economic damages in Medical Malpractice cases save insurance companies money at the expense of justice for the elderly, young children and the poor in Missouri obtaining justice.

In 2005 Missouri law placed limits on the amount of damages that can be recovered when a doctor, a hospital or other medical professional makes a careless mistake. Under the law passed almost three years ago, injured victims or their families may only receive $350,000 for the pain and suffering caused by the carelessness of another.

Actual damage awards often hinge on lost wages. For the poor who work low incomes jobs, for the elderly who are retired or for the young unable to choose a career, lost wages can be small to nonexistent. As a result, their ability to recover for reckless or even intentional conduct through punitive damages has been severely restricted.

Lawyers are increasingly being forced to turn away medical malpractice cases because the substantial litigation costs associated with pursuing the cases often leaves the victims or their families with little after the expenses are deducted.

Last week, the Associated Press reported on the press conference held by Gov. Matt Blunt touting the medical malpractice caps as a boon for business.

But I have to agree with St. Louis lawyer Ken Vuylsteke who remarked: “What the governor trumpets as a great success we think is a travesty of justice to the people of Missouri.” I also doubt that the law so far has had any great effect on losses or insurance premiums because the law only applied to cases filed after August 28, 2005. It takes approximately 2 years for a case after it is filed to be settled or tried. The statistics the Governor cited were for 2006 which were probably all or almost all pre-tort reform cases to which the lower caps did not apply. This is another example of a politician taking credit for something that was not the result of the new law. When the statistics come in for cases filed after August 28, 2005 I expect to see even greater reductions, but remember the reductions come at the expense of the poor, elderly and children. I just don't think that is good policy.

The lawyers of The Lowe Law Firm are experienced in helping people injured by medical malpractice. We will seek compensation for past and future medical expenses, past and future wages, pain and suffering, disability and other damages. We also represent family members in wrongful death cases.

We offer a free initial consultation for victims of medical malpractice. If you cannot make it to our office, we will come to you at the hospital or your home.

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In Madison County, Illinois, a mother filed a medical malpractice lawsuit against her former obstetrician and Anderson Hospital on April 22, 2008. The medical malpractice lawsuit alleges that both the doctor and the hospital breached the standard care during the delivery of her child on April 29, 2006.

The lawsuit alleges that during labor, the child sustained severe birth injuries that have resulted in life-long disabilities. Fletcher claims that her child is suffering from mental, physical and developmental disabilities originating from the birth trauma.

These types of injuries are generally caused by lack of oxygen and are called hypoxic brain injuries. There are many ways this can happen including the cord wrapped around the babies neck or compression during contractions. These injuries can be avoided by properly monitoring the fetal heart rate and if there are significant fetal heart rate deacclerations, to perform a prompt c-section. Hypoxic brain injuries can be proven by testing the blood of the child for elevated phi which is also called acidosis, evidence of multi-organ failure as well as abnormalities on CT scans.

To prove a birth injury case you need an attorney with experience in these types of cases. You will need an OBGYN to prove a breach of the standard of care, a pediatric neurologist to prove the damages and their cause, a life care planner to prove up future needs of the child, and potentially a neuroradiologist to prove up the fact of the hypoxic brain injury and its timing, that is that it happened in utero during labor.

When you suffer an injury due to a doctor's negligence or mistake, we will help you pursue a medical malpractice claim.

The lawyers of The Lowe Law Firm are experienced in helping people injured by medical malpractice. We will seek compensation for past and future medical expenses, past and future wages, pain and suffering, disability and other damages. We also represent family members in wrongful death cases.

We offer a free initial consultation for victims of medical malpractice. If you cannot make it to our office, we will come to you at the hospital or your home.

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A man who was paralyzed due to alleged medical malpractice after a surgeon implanted a blood-clotting fabric into his spine has settled his medical malpractice claim for $3.7 million.

In 2003, Dr. Woosup Michael Park performed spinal decompression surgery on Leopoldo Castillo at New York Presbyterian Hospital. During the procedure, Park implanted the blood-clotting fabric Surgicel. Less than three hours after surgery, Castillo couldn’t feel or move his legs. During a second surgery, doctors discovered that the Surgicel fabric had expanded and compressed the patient’s spinal cord. As a result, Castillo was permanently paralyzed.

Castillo sued Park and New York Presbyterian Hospital for medical malpractice alleging that the use of Surgicel in spinal surgery was improper. The patient recently agreed to settle with the doctor and hospital for $3.7 million.

When you expect help and end up worse off due to a doctor's negligence or mistake, we will help you pursue a medical malpractice claim.

The lawyers of The Lowe Law Firm are experienced in helping people injured by medical malpractice. We will seek compensation for past and future medical expenses, past and future wages, pain and suffering, disability and other damages. We also represent family members in wrongful death cases.

We offer a free initial consultation for victims of medical malpractice. If you cannot make it to our office, we will come to you at the hospital or your home.

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According to the Associated Press, Illinois doctors will collectively receive an $11 million refund from the state’s largest malpractice insurer.

The refund will come in the form of a credit on Illinois State Medical Insurance Exchange policy renewals. Individual doctors can expect a $500 to $1,000 deduction.

Bruce Kohen, president of the Illinois Trial Lawyers Association, attributes the refund to a 2005 law that gives state regulators the power to review insurance rates. Because of the regulatory oversight, insurance companies were required to give back the premiums to doctors.

For years, Illinois trial attorneys have been blamed by doctors for high premiums. But as this refund demonstrates, doctors should be asking whether they’re getting overcharged by their medical malpractice carrier.

Some of the medical malpractice insurers claim the refund is the result of Illinois medical malpractice reforms that have placed caps on the recoveries. Those insurance interests ignore the fact that the law was passed in 2005 and it applies only to cases filed after its effective date. In addition, it takes two or more years for those suits to go through the court system and
the caps have not had any effect on the majority of cases that were settled from 2005 through 2007. Moreover, the Circuit Court of Cook County Illinois has declared the law unconstitutional and that issue is on appeal so any claim that the refund is based on the medical malpractice reform is wholly without merit. Finally, the caps are $500,000 per doctor and $1,000,000 per hospital so it is hard to believe that the caps have had any effect.

The lawyers of The Lowe Law Firm are experienced in helping people injured by medical malpractice. We will seek compensation for past and future medical expenses, past and future wages, pain and suffering, disability and other damages. We also represent family members in wrongful death cases.

We offer a free initial consultation for victims of medical malpractice. If you cannot make it to our office, we will come to you at the hospital or your home.

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Birth Injuries that are the result of medical malpractice frequently are caused by lengthy labor failure to monitor the fetal heart rate and failure to perform a timely cesarean section. This results in a hypoxic brain injury. Doctors can tell after the baby was born if the injury was the result of a hypoxic brain injury during labor. First they test the baby's blood for acidosis or elevated levels of PH, which the body produces when the baby is deprived of oxygen. Also the results of serial CT scan can time approximately when the injury occurred. Lastly the fetal monitor strips will show substantial heart rate deceleration during labor.

In the case that resulted in the $30 million verdict, the mother was rushed to the hospital after her water broke and she went into labor. Monitors placed on her stomach warned that the baby’s brain wasn’t receiving enough blood and oxygen because he was being strangled by his own umbilical cord. It had wrapped twice around the baby’s neck.

Instead of performing a cesarean section immediately, the doctor waited several hours to deliver Jacob Tomlian. Eighteen months later, Jacob’s parents learned that their son had brain damage. His comprehension is far behind that of his peers. In addition, he suffers from cerebral palsy and spastic legs.

Jacob will never be able to work, never be able to drive, and will never be able to live on his own. He’s already had his kidney replaced and both of his legs broken and fused together. He will soon have hip surgery that will probably leave him wheelchair-bound for the rest of his life.

Fifteen years ago, Tomlian’s family sued Dr. Mark Grenitz, the gynecologist who helped deliver Jacob, as well as Westside Regional, the hospital in Broward County, Fla., where Jacob was born, for medical malpractice.

On Monday, a six-person jury unanimously concluded that the hospital and doctor were negligent and that those medical errors caused the boy’s injuries. They awarded Jacob $30 million in damages, the Miami Herald reports

The award is undoubtedly a relief for Jacob’s family because they no longer have to worry about his care. Having represented families in birth injury cases, I also know that every parent would gladly give the award away if they could undo the mistakes that caused their children so much pain.

The lawyers of The Lowe Law Firm are experienced in helping people injured by medical malpractice. We will seek compensation for past and future medical expenses, past and future wages, pain and suffering, disability and other damages. We also represent family members in wrongful death cases.

We offer a free initial consultation for victims of medical malpractice. If you cannot make it to our office, we will come to you at the hospital or your home.

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As a lawyer who handles medical malpractice cases in Illinois, Missouri as well as many other states, I was surprised by the new study which concluded that medicine mix-ups, overdoses and adverse drug reactions hurts one out of every 15 hospitalized children, the Associated Press reports.

The study, which appears in the April issue of the journal Pediatrics, shows that previous error estimates were much too low. To expose the alarming rate of mistakes, researchers shied away from the voluntary reports of hospital staff. Instead, they developed a methodology that outlined 15 specific triggers that could signal a drug-related error.

The triggers included the use of the drug naloxone, an antidote for the overdose of morphine and other painkillers; the use of vitamin K, used as an antidote for an overdose of the blood thinner Coumadin; and the use of two different lab tests, one that detects insulin overdoses and another that detects heparin overdoses.

Actor Dennis Quaid’s newborn twins received life-threatening doses of heparin last November. The babies eventually recovered. In response to the harrowing event, Quaid and his wife formed a foundation to prevent medical errors. His advice to parents of hospitalized kids:

“Every time a caregiver comes into the room, I would check and ask the nurse what they’re giving them and why.”

Quaid’s experience and the new study make clear that adults aren’t the only ones hurt by preventable medical mistakes. When avoidable mistakes are made, the medical profession should be held accountable.

The lawyers of The Lowe Law Firm are experienced in helping people injured by medical malpractice. We will seek compensation for past and future medical expenses, past and future wages, pain and suffering, disability and other damages. We also represent family members in wrongful death cases.

We offer a free initial consultation for victims of medical malpractice. If you cannot make it to our office, we will come to you at the hospital or your home.

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A baby boy disabled during birth trauma was awarded $19 million to help pay for the life-long medical care needed due to the boy’s injuries.

The boy was born during a c-section, and had to be resuscitated. The baby had to spend the first four months of his life in intensive care. He is permanently disabled, legally blind, suffers from severe brain damage and he has cerebral palsy. Cerebral palsy is usually caused by lack of oxygen during pregnancy. It causes hypoxic brain injury which means that the brain has been deprived of oxygen. This is usually proven by a CT scan which is interpreted by a neuro radiologist. The neuro radiologist can also date when the brain was deprived of oxygen. In addition, when a baby is born with cerebral palsy the baby's blood is checked for excess levels of PH. When a person (including a child in utero) is deprived of oxygen their blood will have excess levels of acid which is called acidosis. These tests are routinely performed on a child who is born with cerebral palsy.

The plaintiffs alleged that the obstetrician misdiagnosed the boy’s mother. The boy's mother called her doctor in the 30th week of her pregnancy and complained of abdominal pain. It was alleged that the doctor did not determine that she was hemorrhaging, did not give the her the proper tests, did not recognize that the baby was in distress or heed the warnings of his nursing staff who identified the woman’s problem.

The jury found that the doctor was negligent and awarded the boy $19 million in damages.

The lawyers of The Lowe Law Firm are experienced in helping people injured by medical malpractice. We will seek compensation for past and future medical expenses, past and future wages, pain and suffering, disability and other damages. We also represent family members in wrongful death cases.

We offer a free initial consultation for victims of medical malpractice. If you cannot make it to our office, we will come to you at the hospital or your home.

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The Illinois Supreme Court is set to consider the constitutionality of damage caps passed by the legislature. Last November, Cook County Circuit Judge Diane J. Larsen overturned an Illinois law that capped damages in malpractice cases. Her decision was appealed by the hospital. Next month, briefs and friend-of-the-court briefs debating the constitutionality of tort caps are expected to be filed with the Illinois Supreme Court.

As I noted in an earlier blog entry, the underlying lawsuit was brought on behalf of Abigaile LeBron, a girl who was born with a permanent brain injury. Her mother sued Gottlieb Memorial Hospital and others alleging medical negligence. The suit also challenged a 2005 law that capped pain and suffering damages at $500,000 for doctors and $1 million for hospitals alleging it violated the Illinois Constitution.

Illinois is a key battleground in the fight over caps in tort cases. Advocates of the limits claim that they are needed to keep doctors and hospitals in business. Opponents argue that when the carelessness of a doctor or hospital leads to injuries – especially severe ones like Abigaile’s permanent brain injuries – the victims deserve to be compensated and the doctors and hospitals must be held responsible.

Because of the importance of the case, it is expected that a number of amicus briefs will be filed with the Illinois Supreme Court.

Illinois isn’t the only state with caps. Caps have either been proposed or enacted in all 50 states. In Missouri, the caps are extremely oppressive, limiting non-economic damages to a mere $350,000.

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In an Illinois Medical Malpractice case a jury in La Salle County Circuit Court decided an Illinois Plaintiff should receive nearly $24 million from a doctor and nurse practitioner in a malpractice case.

The 34-year-old Streator man filed a lawsuit in May 2003 against Ephraim W. Batambuze, M.D., John E. Podzamsky, D.O., registered nurse anesthetist Linda Blair of A.T. Associates and nurse practitioner Patricia Duffield, as well as against Batambuze's practice, Prairie Cardiovascular Consultants.

Porter said he entered St. Mary's Hospital in Streator in November 2001 for surgery involving a kidney stone in his ureter. During surgery, he underwent cardiac arrest and the flow of oxygen to his brain was interrupted.

As a result of the oxygen interruption, Porter lost most of his fine motor skills and suffers from spastic movement, severe double vision and slow, slurred speech, making him difficult to understand. However, Porter, who uses a wheelchair, can understand others. He is married and has two children. Before the surgery, Porter worked for a phone company.

The trial began Jan. 30 before Chief Judge James Lanuti. On Feb. 8, the plaintiff settled with Porter for $1 million each. The trial continued and on Thursday, jurors ruled against the remaining defendants, awarding the Illinois man $23,737,234.

A video recording titled "A Day in the Life" was shown to jurors. The video had no sound, which was meant to make jurors concentrate on the images. The video showed Porter's daily struggles. The video showed the injured plaintiff trying hard to do things and that in spite of the hard ships he faced that he still had a sense of humor.

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A lawsuit filed against a doctor who, despite his patient’s symptoms, failed to order a medical test that would allegedly have detected gastric cancer when it was still treatable has been settled for a confidential amount.

Attorneys Jeffrey J. Lowe of The Lowe Law Firm represented the woman's family.

On Jan. 8, 2002, Panagiota Yiatras, 65, was examined by Dr. Miguel Cannon, her primary-care physician. She told Cannon that she had been tired for about a month and had lost three pounds since the previous fall. Cannon referred her to a gastroenterologist at Gateway Gastroenterology Inc. in St. Louis County, for a colonoscopy.

Nine days later, Yiatras with the gastroenterologist and complained that she had been bloated for the past month and explained that she had now lost five pounds. The colonoscopy was performed on Jan. 18, 2002, at St. John’s Mercy Medical Center. The hospital’s records indicate that Yiatras’ health complaints were weight loss, nausea and abdominal pain. The admitting history indicated that Yiatras complained of weight loss, stomach upset, heartburn and pain.

During the colonoscopy, a noncancerous polyp was discovered. In the report of the colonoscopy, the gastroenterologist noted that the patient’s chief complaint was abdominal bloating and that she believed that she had lost five pounds. He diagnosed gastroesophageal disease and recommended treatment with a proton-pump inhibitor.

On Jan. 29, 2002, Yiatras met with her primary-care physician to discuss the polyp, and he recommended that she undergo another colonoscopy in three years. In July 2003, though, it was discovered that Yiatras had metastatic gastric cancer that had progressed to stage IV, the final stage. She died in March 2005.

Yiatras’ husband and adult children filed a suit alleging wrongful death and medical malpractice against Gateway Gastroenterology Inc. in St. Louis County Circuit Court on Aug. 26, 2005. The family alleged that the gastroenterologist negligently failed to recommend Yiatras have an upper endoscopy, which would likely have revealed the cancer.

According to plaintiffs’ expert Dr. Meyer Solny, a board-certified gastroenterologist, Yiatras had dyspepsia, defined as chronic or recurrent pain or discomfort in the upper abdomen. Whenever a patient older 45 reports dyspepsia and weight loss, according to the standards of the American Gastroenterological Association, an endoscopy should be performed. The American Society for Gastrointestinal Endoscopy sets forth similar recommendations for patients older than 45 who experience dyspepsia and weight loss.

An oncologist expert for the plaintiffs, Dr. Robert Sklaroff, opined that, judging from Yiatras’ symptoms, in January 2002 the gastric cancer would have been at stage I or IA, which carries a survival rate in excess of 50% at five years. It was his opinion that if the cancer had been discovered in January 2002 Yiatras would likely have survived.

The defendant denied the allegations. They asserted that at the time the colonoscopy was performed Yiatras did not have dyspepsia and a 5-pound weight loss was not significant enough to warrant an upper endoscopy. It was the opinion of the defendants’ oncology expert that she had either stage II or stage III gastric cancer. The survival rate for stage II or stage III cancer is less than 50 percent, and the five-year survival rate for stage III cancer is 8 percent.

The case was referred to mediation. The parties entered into a confidential settlement on Aug. 10, 2007. The defendant did not admit liability.

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As a medical malpractice lawyer who practices in Missouri, Illinois as well as other states, I know that medical malpractice cases are difficult and expensive cases to handle. Medical malpractice cases are also more difficult to win in comparison to a product liability case because in a product liability case you can generally present evidence that the corporation knew of the risk of injury, could make the product sager but made the conscious decision to put profits over safety. In a medical malpractice case you have a doctor who is in a caring profession, who did not mean to injure their patient but just made a mistake which resulted in one of their patients being injured.

Over the last several years insurance companies and large corporations have spent millions of dollars convincing the public that a medical malpractice crises exists. The effect of this well organized disinformation campaign has made it more difficult for plaintiffs to win medical malpractice cases. These campaigns have influenced some state legislatures to limit the amount of damages a plaintiff can recover in a medical malpractice for non-economic damages which are commonly known as pain and suffering.

These laws have dramatic effects, for example in California the cap is $250,000 and in Missouri it is $350,000. Furthermore, in both states the cap is not indexed to keep pace with inflation. What these laws do is unfairly shift the burden of the medical providers negligence from the hospital or doctor who made the error and who can insure against the loss to the individual whose life has been dramatically changed by the medical providers negligence.

Who can legitimately argue that if you are paralyzed or suffer a permanent disability from a medical providers negligence that $350,000 is adequate compensation. The public needs to be aware of the effect of these laws and express their outrage at this unfair risk shifting from medical providers who are able to protect themselves by obtaining insurance, to patients who maybe be burdened with permanent disabilities and inadequate compensation to help ease their suffering and without any means to protect themselves. These laws need to be changed by the legislatures and they need to be challenged in court. As a matter of fact, a judge in Chicago Illinois recently held that Illinois "medical tort reform law" which included a cap on non-economic damages was unconstitutional. The defendant in that case has appealed the judges decision to the Illinois Court of Appeals and a final decision will not be made on this issue for months.

People analyze this issue objectively and not fall for the propaganda put out by insurance companies and the medical community. As a medical malpractice lawyer I will do my part by picking the best case I can to challenge these laws. The public can do its part by voting for candidates who represent the people of their district or state and not corporations and insurance companies.

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Illinois' medical malpractice damage caps were declared unconstitutional by a Cook County Circuit Judge on November 13, 2007. On December 13, 2007 the hospital and doctor filed a notice of appeal with the Illinois Supreme Court in an effort have the decision overturned.

In 2005, the Illinois legislature passed Public Act 94-677 which capped non-economic damages, also known as pain and suffering awards, at $500,000 for doctors and $1 million for hospitals. The new law came on the heels of a scare campaign waged by insurance companies, hospitals and doctors. That campaign blamed lawsuits for skyrocketing insurance rates and claimed doctors were leaving the state as a result.

What they didn’t tell the public was that the insurance industry was responsible for the high rates and that insurance reform was needed. Unfortunately, the politicians passed a measure that protected hospitals and doctors and insurance companies at the expense of patients.

Abigaile Lebron, an infant, was one such patient. It is alleged that Abigaile’s delivery was botched, leaving her with permanent and severe brain damage. In 2006, a medical malpractice suit was filed against Gottlieb Memorial Hospital, Dr. Robert Levi-D’Ancona and Florence Martinez, a nurse.

Abigaile’s lawyers challenged the constitutionality of the medical malpractice caps, arguing that the law stripped away a patient’s right to seek redress in court. Cook County Circuit Judge Joan Larsen agreed. On Nov. 13, she ruled that the legislature cannot interfere with the right of judges and juries to determine fair damages. The caps, Larsen concluded, violate the “separation of powers” clause in the Illinois Constitution.

In the ruling, Larsen relied on two Illinois Supreme Court decisions, Best v. Taylor Machine Works, 179 Ill.2d 367 (1997) and Wright v. Central DuPage Hospital Association, 63 Ill.2d 313 (1976), ran afoul of the state constitution.

After Judge Larsen’s ruling, the defendants vowed to take their challenge to the Illinois Supreme Court. On Dec. 12, they made good on that promise.

I think the earliest will see a ruling from the Illinois Supreme Court will be by the end of August. This case will be closely watched. Perhaps by that time, the constitutionality of Missouri’s $350,000 medical malpractice cap will also have been challenged, which is much more draconian than the Illinois cap.

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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.

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