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Medscape reports that medical malpractice rates in three bellwether medical specialities are essentially flat in 2015, meaning there is little increase or decrease in the rates.

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Rates for obstetricions/gynecologists, internists and general surgeons are essentially unchanged from 2014. Given that malpractice suits are on the decline, this shouldn’t come as a surprise, but in the past market forces have shown that actual malpractice lawsuit numbers and insurance rates have little correlation.

If you have questions regarding malpractice, please see .

On May 8, 2015, Govern Jay Nixon (D) signedinto law the latest attempt by Missouri’s Republican legislature to take away a medical negligence victim’s right to full and fair compensation. Yes, the legislature has once again capped medical malpractice damage awards, placing their judgement before that of an independent jury.

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In 2005, the Missouri Legislature capped malpractice awards. In 2012, in Watts v. Cox Medical Centersthe Missouri Supreme Court said the caps, except with regard to death claims, violated the Missouri Constitution by infringing on the common law right to trial by jury. (Because wrongful death claims did not exist at the time the Missouri Constitution was adopted, the caps applicable to such cases were deemed valid.)

So … isn’t that the end of the discussion? Our Supreme Court deemed it unconstitutional, right? Well, apparently our state legislature doesn’t agree with that ruling. So, in Senate Bill 239, the Legislature effectively repealed part of the Missouri Constitution. It legislatively nullified the Missouri Constitution as it applies to doctors and hospitals. And then capped damage awards … again.

Those who uphold the right to trial by jury fought and obtained some concessions. First, the new cap is slightly higher–$400,000 for non-economic damages v. $350,000 under the 2005 law. (Non-economic damages are those other than for lost wages and medical bills.) Second, the new law institutes a 1.7% per year cost of living increase on the cap. Third, and most important, the law creates a second, higher cap for catastrophic injury and death cases.

The law defines “catastrophic injuries” as this involving Quadriplegia, paraplegia, loss of 2 or more limbs, brain injury, major organ system failure and blindness. The cap on non-economic damages for these types of injuries is $700,000. Is that a lot of money? Sure it is. Is that a lot of money if you have been rendered a quadriplegic because of medical negligence and you will never walk, or run or dance at your child’s wedding? Of course it isn’t. Is it a lot of money if an infant is injured and will spend the rest of their life in a nursing home? Obviously it isn’t. It is slightly less insulting than $400,000.
The same $700,000 cap applies to death cases.

Will this new law pass constitutional muster? I strongly doubt it. The Missouri Legislature has decided to selectively repeal a fundamental right granted by the Constitution, and only with regard to a very select group of defendants. Let me make this perfectly clear: These caps do not apply to any other type of injury case. Not auto accidents, not truck accidents. Not product liability claims, nothing. So if you are injured as a result of anyone’s negligence, other than a doctor or hospital, you are entitled to your full Constitutional rights. But not if you are injured by a doctor or a hospital.

In an upcoming post I’ll address what this means to those who might have malpractice cases currently pending.

A report titled Another Reason Why You Should Ban Smart Phones from the OR raise, at least for me, this question: What’s the first reason? Is there any reason why a surgeon, anesthesiologist, nurse or surgical tech should be using a smart phone in the OR? Granted, some hospitals may utilize tablets to record patient vitals, but what reason is there to be surfing the ‘net during a procedure?


And as for the anesthesiologist posting to Facebook during a procedure? Seems to me this doctor needs to have his license revoked.

In a preliminary ruling issued on February 3, 2014, a federal judge ruled that flashing your headlights at oncoming traffic to warn of a speed trap is constitutionally protected speech.

Judge Henry Autry, in the case of Elli v. City of Ellisville, made a preliminary finding that the plaintiff was likely to succeed on the merits in a obtaining a permanent injunction. He then issued a preliminary injunction restraining the City of Ellisville from continuing to issue tickets for this common practice. In doing so, Judge Autry rejected the City’s argument that flashing your lights to warn of a speed trap was, in effect, interfering with a police investigation.

So … all those times you’ve flashed your lights? That was legal. Most people would have never thought it wasn’t.

How much is something going to cost? Always a fair question and almost always one that can be answered before you purchase anything. But when you are talking about medical procedures, particularly things like hip and knee replacements, you may not be able to find out.


NPR, reporting on a study by Health Affairs, shows that the vast majority if orthopedic surgeons have no idea how much the implant they are using ends up costing the patient. Only 21% of them were able to accurately estimate the cost of the implants (accurate being within 20% of the actual cost).

That is really an astounding finding. Patients are consumers of medical services and should expect and demand transparency in pricing. Of course you can’t predict the final cost of any procedure because complications occur, but the base cost of the procedure should be transparent.

One problem? As NPR report, the costs of implants are often negotiated by the hospitals. Thus the same implant can be wildly different prices depending upon where the procedure is performed.

Bottom line: patients need to demand transparency in pricing.

The “McDonald’s Coffee Case.” Everyone thinks they know the story. Someone goes to McDonald’s, pours hot coffee in their lap, sues and wins a multi-million dollar judgment. Simple. The stuff of late night comedy. Heck, Seinfeld even spoofed it.

But the real facts are far different. And the New York Times has just released a short video report that does a fair job of telling the real facts. You can view it here.

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The NY Times report is clearly based on the work done by film maker Susan Saladoff in Hot Coffee a documentary film on tort reform. Saladoff’s film should be required viewing for anyone who “thinks” they know the story behind the case.

The real facts? The jury awarded Stella Lieback $200,000 for multiple 3rd degree burns to her crotch, legs and buttocks. She underwent extensive skin grafts to close the severe burns. Then the jury found Ms. Lieback to be partially at fault, reducing the verdict. The millions came in because the jury awarded punitive damages equal to just 2 days of McDonald’s coffee sales. Why? Because the evidence was that McDonald’s policy was to brew and store coffee at a temperature 20-30 degrees hotter than a traditional coffee maker, at a temperature that they knew would cause scalding burns if spilled or consumed without cooling and because over a 10 year period McDonald’s had settled over 700 cases involving burns. The jury felt that punitive damages were the only way to send a message to McDonald’s to turn down the temperature.

Hot Coffee is available on iTunes and NetFlix.

In 1999 the Institute of Medicine published its landmark study “To Err is Human” which estimated that medical errors cause up to 98,000 deaths per year. Now, Pro Publica reports on a study in the current issue of the /Journal of Patient Safety that more than doubles that estimate.


According to the evidence-based study between 210,000 and 440,000 patients die each year as a result of medical errors. This would make medical mistakes the third-leading cause of death behind heart disease and cancer (all cancers combined).

I’d like to say that I’m shocked by this finding, but I’m not. Unfortunately, doing what I do every day I see the mistakes constantly. You would think that I see the bad medicine and not the good, but that isn’t entirely true. In fact, what I see most often is very good, even heroic, medicine every day. The care that is given to try to correct the mistakes made, usually by others, is often incredible. But the mistakes that set the patient down that path are often clear and infinitely preventable.

Attempts to shield doctors and hospitals from the effects of their mistakes, such as attempts to limit the damages that can be awarded in medical negligence lawsuits, are misplaced. Instead, the focus should be on eliminating the mistakes, through the implementation of processes and procedures to eliminate the most frequent errors. And true oversight by state regulators on physician licenses and hospital accreditation is also needed.

It makes sense that the focus should be on eliminating the problems and helping the victims of medical mistakes, not on shielding the negligent.

The DaVinci robotic surgery system by Intuitive Surgical, Inc. is a high tech, 3D “robot” remotely operated by a surgeon. The DaVinci system is the hottest new product, touted by Intuitive and the hospitals it sells the system to as the greatest thing since the invention of the scalpel. They promise more precision, faster recovery and other benefits. But is it all that? Reality is substantially at odds with the marketing hype.


The DaVinci robot is, at its core, simply another way to perform laparoscopic surgery. Laparoscopic minimally invasive surgery has been around for 20+ years and is utilized in many common surgical procedures: gallbladder, hysterectomy, prostatectomy, hernia and many others. Laparoscopic surgery is performed by a surgeon who places ports into the abdomen and insufflates the abdominal cavity with gas to allow for room to insert and manipulate surgical instruments through the ports. A camera and light are inserted through one port, so that the surgeon can see inside the patient on a video monitor. The surgeon directly manipulates the instruments through the portals. For more on laparoscopic surgery, see this article in Wikapdia.

The DaVinci system differs in that the surgeon’s direct contact with the instruments is severed. Traditional portals are placed, but then instruments and camera are inserted and these are attached to the DaVinci robot system. The surgeon, although still in the same OR room, sits at a remote console and operates the instruments via joystick-like controllers. An easy way to visualize it is to say it is like he is playing a video game. Except in this case, he doesn’t get to simply start over if a problem arises.

Intuitive has saturated the market with the DaVinci robot, by hyping the purported advantages of the system. They claim that the robotic system allows the surgeon an unprecedented 3D view inside the patient, as opposed to the 2D view of traditional laparoscopy. They assert that the system allows for the surgeon to make minutely accurate motions, because he or she can move their hands in the controls but have that translate to only millimeter movements inside the patient. It all sounds great. But the reality is not quite equal to the hype.

Reports have indicated problems with the robotic arms moving independently, causing internal injuries. Reports exist that the electric cautery instruments used in parts of certain procedures are sending electrical arcs out and causing burn injuries to adjacent organs or even causing remote injuries to organs far removed from the surgical location due to improper grounding. There have been reports of the system simply freezing during a procedure.

Even more frightening are the indications that hospitals are allowing surgeons to utilize the DaVinci with very little training and very little supervision. Any time a new surgical technique or tool is introduced, the surgeon and the hospital have a responsibility to make sure the surgeon has adequate training. Some sources indicate that a surgeon may require 100 or more surgeries before he is technically competent with the DaVinci. However, hospitals are not requiring anything like 100 supervised surgeries before turning the surgeon loose to fly solo on the DaVinci. In fact, some are requiring little more that a weekend training session.

Suffice it to say, that we anticipate significant malpractice claims arising out of the use of DaVinci robotic surgery systems. Product liability claims against Intuitive may be warranted in some cases. But even more likely are cases against the surgeons and the hospitals for malpractice, failure to advise the patients of the surgeon’s lack of experience, inadequate training of support staff and many other issues.

If you or a loved one has experienced injuries in connection with a DaVinci robotic surgical procedure, please contact our office for a consultation. Only an experienced medical malpractice attorney can tell you whether or not you have a case.

Johnson & Johnson hit with $8.3 million dollar verdict in the first case to go to trial over the defective Depuy ASR hip implants, reports Bloomberg.

The verdict was for more than the $5.3 million in compensatory damages requested by plaintiff, but did not include any punitive damages. Apparently the issue of punitive damages was hotly debated by jurors. The jury deliberated for five days.

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A New Jersey Jury has awarded a South Dakota woman $3.35 million dollars in the first vaginal mesh case to go to trial against Johnson & Johnson regarding the Ethicon mesh, reports Reuters.