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" »

This week, the Missouri Court of Appeals for the Western District upheld an $8 million punitive damages award against State Farm, calling the insurance company’s conduct “clearly reprehensible.”

The Jan. 8 ruling involves conduct that stretches back ten years. In 1997, Jennie Hampton called State Farm and reported that her car had been stolen. It was later found abandoned and burned in a Kansas field.

State Farm denied Hampton’s insurance claim. The insurer alleged that Hampton had provided false information when she claimed the engine was in “excellent” condition. According to State Farm, the engine had failed. The insurer also alleged that Marvin Vail, a tow truck driver and the brother of Hampton’s boyfriend, towed the car to the field. State Farm claimed that Hampton and Vail then burned the car to collect insurance money.

State Farm’s investigator contacted the National Insurance Crime Bureau about Hampton’s claim. NICB then contacted Kansas prosecutors. Hampton, Vail, and her boyfriend were charged with insurance fraud and conspiracy to commit insurance fraud. The criminal case against Hampton and Vail went to trial. A jury cleared them of any wrongdoing.

Hampton and Vail filed a breach of contract and malicious prosecution case in Jackson County. It went to trial in 2005. A jury awarded Hampton $10,300 on her breach of contract claim. Hampton and Vail were each awarded $400,000 and legal fees on the malicious prosecution claim. In awarding punitive damages of $4 million to each plaintiff, the trial court noted:

• State Farm’s lawyer lied when he claimed a plaster cast of tire tracks from a tow truck existed;
• State Farm’s lawyer told Hampton’s attorney that criminal charges could be brought and she better be careful;
• State Farm withheld evidence from NICB and the prosecutor that would have supported Hampton’s claim;
• State Farm’s lawyer threatened a witness with perjury if he changed his story;
• State Farm’s mechanical expert did not fully examine the car’s engine before rendering an opinion on the engine’s condition;
• State Farm prepared the mechanical expert to testify at the criminal trial without consulting the prosecutor;
• State Farm failed to investigate the tow truck’s log records and did not interview an independent witness who had seen Hampton driving the car before the theft.

State Farm appealed on several grounds. On Tuesday, the appellate court rejected State Farm’s arguments, concluding that the jury instructions were proper, there was substantial evidence that supported the malicious prosecution and punitive damages award, and that the award was not excessive.

In the opinion, Judge Victor C. Howard wrote:

“In this case, it is clear that the Plaintiffs were financially vulnerable, especially considered in relation to State Farm. State Farm’s misconduct, including relying on a questionable expert, excluding exculpatory evidence, and making representations about nonexistent plaster cases, is clearly reprehensible.”

State Farm went to great lengths to avoid paying Hampton’s claim. And when she fought back, the company resorted to bully tactics and criminal prosecution. When making a insurance claim, especially one involving serious injuries, some companies don’t fight fair. A plaintiff’s lawyer is an important ally who will protect your interests.

In a personal injury case pending in Missouri, Allstate Insurance Co. is racking up $25,000-a-day in court fines, because it refuses to comply with a judge’s order to hand over documents, the Kansas City Star reports.

At the center of the controversy are papers prepared by consultant McKinsey & Co in the 1990s. Dubbed the McKinsey documents, they were used by the insurance company to formulate its policies, methods and claims procedures. Policyholders and the lawyers who represent them believe the documents show how the company amassed large profits at the expense of its own policyholders.

One of those policyholders sued Allstate for bad faith in Jackson County Circuit Court. He alleged that Allstate refused to pay a claim arising out of a car wreck more than seven years ago. A Jackson County Judge ordered the insurance company to produce the documents to the plaintiff, making them open records for public view. Flouting the judge’s order, Allstate has refused to comply. In mid-September, the judge fined Allstate $25,000 each day. That fine is now about $2.5 million. The insurance company’s San Diego lawyer told the judge the company would not provide the documents without a protective order sealing them off from the company.

This case is a perfect example of shortsighted policies motivated by greed. If Allstate simply paid its policyholders as they promised, there would be no need for the strategies and procedures outlined in the McKinsey documents. If Allstate had simply paid this policyholder’s claim after the accident, there would have been no need for the lawsuit and legal expenses. If Allstate had not flouted the judge’s order, it would not be facing multi-million fines. Unfortunately, the company shows no sign of abandoning its ill-advised strategies anytime soon.

Personal injuries verdicts can be overturned for what is called juror misconduct. As a trial lawyer that is very frustrating to try a case and get a favorable verdict, but then have the defense lawyer investigate jurors background's and compare it to their testimony during jury selection.

In a recent decision the Missouri court of appeals held that nondisclosure can occur only after counsel asks the potential jurors a clear question that unequivocally triggers a juror's duty to respond. If the question asked was clear, and the juror failed to disclose relevant information, the trial court abuses its discretion in failing to overturn the verdict by ruling that the failure to respond was unintentional nondisclosure. Nondisclosure is unintentional when the potential juror does not remember "the experience, or it was insignificant or remote in time, or when the [potential juror] reasonably misunderstands the question posed." However, it is intentional when a potential juror "has no reasonable inability to understand the question and either actually remembers the experience or the purported forgetfulness is unreasonable." The juror's the experience was significant in that he wrote letters protesting the underlying claim and it should be in the juror's recent memory because he and his wife had two default judgments rendered against them and were still making payments to satisfy the judgments during trial. Thus, his nondisclosure was intentional; and intentional nondisclosure about litigation experience are per se prejudicial and require a new trial.

In the recent case Ms. Ilene Massey brought a personal injury lawsuit against Mr. George L. Carter. After a jury verdict for Mr. Carter, Ms. Massey filed a motion for new trial on the basis of juror misconduct. In the motion for new trial, Ms. Massey claimed that Juror Stephen Pack failed to disclose information about prior litigation experience. During voir dire, Ms. Massey's counsel asked the panel, "Have any of you ever been sued by anyone?" Juror Pack did not respond.

During a post-trial hearing, evidence was adduced that Juror Pack had five collection lawsuits filed against him and three of the five were recent lawsuits. A witness testified that Juror Pack knew about two of the recent lawsuits and the subsequent default judgments entered against him and his wife. Juror Pack testified that he remained silent when the question was asked because he did not consider debt collection as "being sued." He also stated that the collection lawsuits never came to his mind because he thought the question was limited to personal injuries, car accidents, or other matters similar to the trial. The trial court denied the motion for new trial, ruling the "question was not a clear question" and "Juror Stephen Pack's nondisclosure was unintentional." Ms. Massey appeals.

The court of appeal in reversing the case wrote: "In reviewing a denial of a motion for new trial based on juror nondisclosure, this court must determine whether the trial court abused its discretion in finding that the nondisclosure was unintentional and that the unintentional nondisclosure did not prejudice the movant. Ewing v. Singleton, 83 S.W.3d 617, 620-21 (Mo. App. W.D. 2002). Although this court reviews the finding of unintentional nondisclosure for abuse of discretion, we review the clarity of the question de novo. Id."

The court in its opinion also wrote: "A venireperson has a duty to fully, fairly, and truthfully answer all questions asked of him or her specifically, and those asked of the panel generally. Id. at 621 (internal quotation marks omitted). The duty to disclose is triggered only after a clear question has been asked. Brines v. Cibis, 882 S.W.2d 138, 139 (Mo. banc 1994). Failure to answer is considered nondisclosure, which can be either intentional or unintentional. Id. There is no nondisclosure if counsel does not ask a clear question. Id. A clear question is one that solicits a layperson to provide the undisclosed information. Ewing, 83 S.W.3d at 621. "The interpretation depends on the context of the question as well as the wording of the question." Id.

Based on the fact that the question asked was clear and called for the prospective juror to reveal any lawsuit they were involved , the court held that the prospective juror's failure to tell the trial court that he was a defendant in several collection lawsuits was intentional nondisclosure because the question was clear, and his inability to understand the question and his purported forgetfulness were unreasonable. Because intentional nondisclosure about prior litigation is prejudice per se, requiring a new trial." Based on that finding the court reversed and remanded the case for a new trial.

As a tip for how to try to avoid this, I make it a practice to ask a fuzzy question. I ask potential jurors if they have ever been a party to a lawsuit but I am not interested in domestic relations cases, collections cases, bankruptcies or thing of that nature. If a juror does not respond but had been sued before, you can make an argument that the disclosure was unintentional because the question was not clear as to what "things of that nature" means. Most defense attorneys will follow up with a more specific question but this strategy has worked for me in the past.

Medical malpractice cases require an expert who is a doctor to testify that the defendant doctor failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendants' profession. In a recent case the Missouri court of appeals reversed the judgment and remanded the case for a new trial because the plaintiff's expert was asked whether he believed that the defendant doctor was negligent but the attorney did not define the term negligence for the doctor in answering the question

The plaintiff who was a gospel singer was diagnosed with possible thyroid cancer. The defendant doctor recommended surgery and was going to remove the right thyroid gland and if it was positive for cancer remove the left thyroid as well. The surgeon removed the right thyroid as planned and the pathology indicated that the tumor was cancerous and the surgeon then claimed he performed a total thyroidectomy, removing the right and left lobes.

Following plaintiff's surgery, he experienced complications that sent him to the hospital and almost caused his death, including a heart attack which caused damage to his heart. While in the hospital, blood tests were performed on the plaintiff and it was found that his thyroid levels were basically normal, did not decrease, and his THS levels did not increase as they should following a total thyroidectomy. While in the hospital an ultrasound was ordered, which showed that the plaintiff's left thyroid lobe had been removed, but that his right thyroid gland was still present. The ultrasound ultimately showed the right thyroid gland to be present in its entirety, although the mass was no longer attached to it. It also showed that the nodules that existed in the right thyroid were still present, and that the amount of right thyroid tissue that was left prevented effective radioablation.

Plaintiff was referred to a thyroid surgeon who reviewed the post-surgery ultrasounds and determined that the plaintiff needed to have a second surgery to remove the right thyroid that had been left during the first surgery. Because the surgery was much more complicated and risky, the plaintiff was referred to a surgeon in St. Louis, Missouri, who recommended a second surgery to remove the right thyroid to remove the cancer risk, and so that he could undergo post-surgical radioablation.

The plaintiff underwent a second surgery during which 8.2 grams of thyroid tissue measuring four centimeters by two and a half centimeters by two centimeters was removed, which was basically the size of the right thyroid lobe. Subsequent testing of the thyroid tissue removed showed it was cancer free.

Following the second surgery, plaintiff's voice was dramatically different, and he found that he had no endurance for singing, and that he had a significantly reduced vocal range for singing. He could no longer sing commercially, record music, or work as a full-time music minister.

The case was submitted to the jury and the jury returned a verdict for plaintiff for personal injuries against Defendant in the amount of $299,644.97. The trial court entered a judgment on the jury verdicts. Defendant appealed contending that the Plaintiff failed to elicit expert testimony describing and defining the meaning of the phrase "standard of care" so that the jury was properly informed of the meaning of the phrase and that the opinions offered by the experts were based on the correct standard. As a result, Defendant contends that Plaintiff failed to make a submissible case.

To make a submissible case, the plaintiff must present substantial evidence establishing each and every element of the claim. Id. The evidence is sufficient to make a submissible case if a reasonable probability that the defendant was negligent may be fairly inferred from it. Delisi v. St. Luke's Episcopal-Presbyterian Hosp., Inc., 701 S.W.2d 170, 173 (Mo.App. 1985). If, however, viewing the evidence in a light most favorable to the plaintiff, the question of negligence may only be determined by resort to conjecture and surmise, then the plaintiff has failed to make a submissible case. Id.

"To make a submissible case in a medical malpractice action, plaintiffs must prove that defendants failed to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendants' profession and that their negligent act or acts caused plaintiffs' injury." Washington by Washington v. Barnes Hosp., 897 S.W.2d 611, 615 (Mo. banc 1995). Stated another way, the plaintiff must prove (1) an act or omission of the defendant failed to meet the required standard of care; (2) the defendant was negligent in the performance of the act or omission; and (3) the act or omission caused the plaintiff's injury. Montgomery v. South County Radiologists, Inc., 168 S.W.3d 685, 691 (Mo.App.2005).

As submitted to the jury, liability of Defendant was premised on whether he "failed to perform a total thyroidectomy" on plaintiff it was thereby negligent, and such negligence directly caused or contributed to cause damage to him. Negligence was defined for the jury in an instruction based on MAI 11.06 as "the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant's profession."

In reversing and remanding the case the court held that plaintiffs' counsel did not provide the definition of the word "negligence" in the immediate context of the question. While [the expert] may have understood the definition of "negligence" which he was to apply in answering the question, the jury might well not have. The question was phrased in terms of "inadequately explored legal criteria." Plaintiff suggested on appeal that the lack of legal criteria is solved by the fact that the court, in the jury instructions, defines the term negligence. This misses the point. Without a definition of negligence supplied in the context of the particular question and answer, the jury may not be able to know what the witness means by the word "negligence," although it may later find out what the court means by that term.

The court of appeal held that because the plaintiff's attorney asked the expert whether the defendant doctor was negligent without defining for the expert how that term is defined under Missouri law, the jury was left to speculate as to whether the testimony of plaintiff's experts was based on the appropriate legal standard or on some other, inappropriate standard, and the reversed the judgment, but remanded the case for a new trial.

The lesson to be learned as a trial lawyer is don't ask a medical expert questions that require legal conclusions, but ask them whether the defendant is negligent using the language from the Missouri Approved Jury Instructions as it defines the term negligence. This applies not only in the Medical malpractice field but in any case that uses the term negligence and you need an expert to establish that the defendant was negligent.

The Missouri Court of Appeals Eastern Division in this personal-injury case against Federal Express, reversed and remanded the the trial court's entry of judgement in favor of the defendant. The plaintiff challenged the sufficiency of the jury verdict which assessed zero percent of fault to her, zero percent fault to the corporation, and then found her damages to be $150,000. The appeal was based on the fact that the verdict form instructed the jury to enter a finding as to her damages only if it had assessed a percentage of fault to the corporation.

The plaintiff was involved in an automobile collision between the car she was driving and a truck being driven by an employee of defendant FedEx. The plaintiff sued FedEx for negligence, seeking to recover compensation for her personal injuries. The trial court submitted the case to the jury against defendant FedEx, under instructions and a verdict form approved for use in comparative-fault cases. At the conclusion of the case the jury returned its verdict assessing no fault to either party, but awarded damages of $150,000 to plaintiff. Under the Missouri Approved Instruction for comparative fault, damages can only be awarded if the defendant is found to be at fault.

Plaintiff's counsel argued that the verdict was inconsistent and requested a mistrial. The trial court polled the jury which confirmed the verdict as its verdict, the court then accepted the verdict, and found that the $150,000 in damages was surplusage and meaningless, and entered judgment in favor of defendant FedEx.

The Missouri Court of Appeals in a two to one decision found the contradictory and that it could not fairly be resolved as a definite finding in favor of either party. The court then held that the verdict was inconsistent and a nullity, incapable of supporting the entry of any judgment. As a result they found that the trial court committed error in entering judgment upon this verdict and reversed the judgment and remanded the cause for a new trial.

It should be noted that at the time of this entry this is not a final decision and subject to modification. See