The Missouri Supreme Court ruled on Tuesday, July 31, 2012 that the 2005 law that limited a patient’s recovery for pain and suffering in a medical malpractice case was unconstitutional. Watts v. Lester E. Cox Medical Centers, SC91867. The 2005 law, 538.210 RSMo., held that no victim of medical malpractice could recover more than $350,000 for his or her pain and suffering.The Missouri Supreme Court held that this was unconstitutional, because it denied the patient a right to a trial by jury, which includes the right to have a jury asses damages. The full opinion can be read here.
I was recently contacted by an individual who had endured significant complications following a surgical procedure. It turns out this individual’s doctor allowed another doctor to perform the surgery without obtaining consent from the patient. In fact, the patient had not met or even heard the doctor’s name until several weeks after the surgery, when complications began to arise. Moreover, the doctor who actually performed the surgery was much less experienced than the original doctor.
Believe it or not, this happens often. It is referred to as ghost surgery. There are obvious concerns with this practice, one of which is the lack of informed consent. In Missouri, physicians are required to obtain a patient’s informed consent prior to performing a surgical procedure, with the exception of emergencies. The identity of the surgeon is crucial to informed consent. Failing to obtain proper informed consent may open the surgeon up to liability for medical malpractice.
If you have been the victim of a ghost surgery, contact the lawyers at Ponder Zimmermann LLC.
An Arkansas teen underwent brain surgery in August 2004, to end seizures he suffered, and doctors wrongfully operated on the wrong side of his brain, performing surgery on the left side of his brain for 4 hours before realizing the mistake. This error in surgery left the teen with brain injury, and he now lives in a rehabilitation center in Virginia. After a 3 week jury trial, the jury returned an unanimous verdict for $20 million.
The attorneys for the teen and his family had excellent photographic evidence of the mistake, as the Arkansas hospital had invited journalists from the Arkansas Democrat-Gazette, a local newspaper, to photograph the surgery. Therefore, a photo existed showing the surgeons operating on the left side of the teen boy’s head. Apparently, after the mistake was discovered, the surgeons notified the hospital’s risk management team, but not the family, before beginning to operate on the right side of the brain. The family did not learn of the mistaken surgery until 15 months later. Now, the boy still suffers from seizures and must take more medicine than he did before the surgery.
A Missouri personal injury lawsuit based on alleged medical malpractice recently resulted in a $1.4 million dollar verdict for the plaintiff, Vickie Shaw. Ms. Shaw sued Dr. Daniel Weed in Clay County Circuit Court. She alleged that Dr. Weed was negligent by inaccurately diagnosing her with avascular necrosis, which resulted in the unnecessary performance of a total hip replacement surgery. She further alleged that the unnecessary surgery left her with permanent pain issues and caused one leg to lengthen, leaving her with uneven leg sizes. The trial lasted three days, and the jury needed less than four hours to rule in Shaw’s favor.
Allegations of medical negligence are being investigated against St. Louis, Missouri VA Hospital, John Cochran Medical Center. A couple of weeks ago, the hospital sent letters to over 1,800 veteran patients telling them that they might have been infected by viruses from improperly cleaned and sterilized dental equipment at the hospital. The chief of the dental clinic, Danny L. Turner, was placed on administrative leave. The House Committee on Veterans Affairs is holding a hearing today on the issue.
Although there are allegations that certain dental equipment used on patients was not properly cleaned, the VA maintains that the risk of infections is minimal. The hospital offered free blood tests to those who might be at risk for infection, including testing for Hepatitis and HIV. Some patients have taken advantage of the free blood screening.
On Tuesday, the Missouri Supreme Court issued an opinion that could have a significant impact on Missouri personal injury cases based on alleged medical malpractice or medical negligence. The Court was called upon to interpret a Missouri statute, R.S.Mo. 538.225, that essentially requires Missouri medical malpractice plaintiffs to file an affidavit of merit early on in medical malpractice litigation stating they have obtained a written opinion from an expert actively practicing in the same field as the defendant. The case was filed against a neurosurgeon, but the plaintiff had obtained an opinion from an interventional radiologist. Based on the distinction between neurosurgery and interventional radiology, the defendant neurosurgeon claimed the plaintiff failed to comply with the statute. The Court, however, disagreed, holding that the statute did not require medical malpractice plaintiffs to obtain an opinion from an expert certified by the same specialty board as the defendant. Instead, the key issue is whether the plaintiff’s expert physician has performed the same type of procedures as the defendant physician.
The case is Ann Spradling, et al. v. SSM Health Care St. Louis, et al.
A Kansas City, Missouri family settled their Missouri medical malpractice and wrongful death suit against Urgent Care of Kansas City and Drs. Robert Frank and Jan Johnson shortly before trial was set to begin.
Andrew Endicott had visited Urgent Care of Kansas City several times for shortness of breath, leg swelling, and other symptoms during 2006. He died September 24, 2006 of deep vein thrombosis. Andrew’s parents alleged that the doctors sent him away without conducting the proper tests or giving him the proper diagnosis, which ultimately resulted in his death. The doctors denied the allegations, stating that Andrew had a pre-existing medical condition and his death was unavoidable.
A St. Louis medical malpractice case ended with the jury finding in favor of the defendant SLUCare and against the plaintiff after a 50 minute deliberation on Friday, June 11, 2010. Barbara Williams, of Arkansas, was diagnosed with liver disease in St. Louis, Missouri. The doctor, Dr. Alex Befeler, a doctor at St. Louis University Liver Transplant Center, decided that Williams needed a liver transplant, but that due to Medicaid rules would have to have the evaluation and any transplant surgery done in Arkansas, where she resided. Williams eventually died, 6 weeks after the evaluation for a liver transplant began in Arkansas.
Williams’s family alleged that Dr. Befeler should have evaluated Williams himself in St. Louis. Williams had already been diagnosed with cirrhosis of the liver prior to seeing Dr. Befeler. When she first saw Dr. Befeler, he diagnosed her with cirrhosis with autoimmune hepatitis overlap, and ordered treatment with prednisone, weekly lab work, and told her to come visit once a month.
On Tuesday, the Missouri Supreme Court reversed a verdict entered in favor of the defendant doctor in a medical malpractice and wrongful death case tried in St. Louis County. At trial, the plaintiff, Elizabeth Mitchell, claimed her Husband’s doctor, Dr. Milton Kardesch, committed medical malpractice and caused the wrongful death of her Husband in failing to instruct her to send her Husband to the emergency room during a phone call she made on behalf of her Husband after he awoke from a nightmare clutching his chest. Dr. Kardesch claimed he did instruct Mrs. Mitchell to send her Husband to the emergency room. Mrs. Mitchell’s Husband subsequently died from complications arising from myocardial infarction and arteriosclerosis.
The issue on appeal was whether the trial court erred in prohibiting Mitchell’s attorney from questioning Dr. Kardesch about a false answer he gave during his deposition. In that regard, Dr. Kardesch testified in deposition that he had never been suspended from practicing medicine, despite the fact his medical license had been suspended in both Missouri and New York. The Supreme Court found error, holding that because Dr. Kardesch’s credibility was such an important issue in the case, MItchell’s attorney should have been allowed to ask Dr. Kardesch about his inaccurate deposition answer at trial.
The Missouri Senate voted on Tuesday, May 4 to give Missouri residents a chance to vote on aspects of the federal health care bill that was passed by the federal government and signed by President Barack Obama.
The federal law requires that most Americans must buy health insurance, with certain exceptions, including low income people. The Missouri proposed referendum would prohibit the federal government from requiring people or employers to buy health insurance for themselves or their employees. The vote was 26-8. If the bill passes the House, the Missouri people will vote on this issue in August. The bill originally sought a Constitutional Amendment, but instead it will now be implemented as Missouri state law.