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One of the most common types of malpractice cases comes out of a doctor or nurse not doing something that they should have done.

Examples of this include:

Failure to render care
Failure to diagnose
Failure to order necessary tests
Failure to report test results
Failure to treat
Infection diagnosis and management

A failure to do something can, and often will, be negligence, because harm to the patient flows from the lack of treatment.

A failure to diagnose or report a suspicious mass on an x-ray may result in cancer going untreated. Failure to order tests after giving a new medication may result in a complication going undiagnosed and untreated for a long period of time.

The most common form of this type of malpractice is the failure to diagnose a condition. When signs and symptoms should lead to certain tests being ordered, and they aren’t, conditions can go undiagnosed with devastating consequences. Or the proper tests can be run, but the doctor fails to appreciate the significance of the test results.

If you believe that a doctor has failed to act, and question whether you may have a malpractice case, contact us to discuss.

Prosecuting a medical malpractice case is expensive. Very expensive. In order to bring a case to trial, tens of thousands of dollars will be spent on medical records, advanced medical research, medical record review, expert witnesses, depositions, trial exhibits and a hundred other things.


A typical “simple” medical malpractice case is more expensive and more complex than almost any other type of personal injury claim. A “simple” medical malpractice case can cost $40,000, $50,000 or more to bring to trial. And that isn’t including attorney’s fees for the patient.

In order to bring a case, it must be economically viable. That means, the ultimate value of the case, when weighed against the cost to bring the case, and the hundreds, and sometimes thousands, of hours spent by the attorney in prosecuting the case, must weigh in favor of pursuing the case.


In order to justify the substantial expense, and risk, associated with bringing a malpractice case, an attorney must weigh the strength of the case, meaning how clear the malpractice is, against the cost to pursue the case and the ultimate potential recovery. It makes no sense to bring a case where the attorney’s contingent fee and expense refund take up all or most of the potential recovery.

The bottom line must be whether or not the client is going to recover enough money to justify the time, expense and emotional cost associated with prosecuting a medical malpractice claim. That calculus will vary from attorney to attorney based on many factors, but it will be a consideration in deciding whether to pursue a claim or not.

The bottom line is, there really is no such thing as a “simple” medical malpractice claim. That is why your choice of attorney is so important. If you believe you have a medical malpractice claim, please contact us at Hendrickson Law.

The University of Missouri’s Orthopedic Institute has developed what they call the Mizzou BioJoint. Mizzou is aggressively marketing the BioJoint as a cutting edge, proven surgical procedure to address knee pain in patients younger than 50 years old. The Mizzou Biojoint is marketed as an alternative to traditional total or partial joint replacement surgery.

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What is a “BioJoint.”

The Mizzou Biojoint is a registered trademark Mizzou surgeons use for procedures using large scale osteochondral allografts to address osteoarthritis and other causes of cartilage loss. These allografts are harvested from cadaver joints. Traditionally, smaller scale allograft plugs are used to repair focal area cartilage defects in the knee. However, the Mizzou BioJoint utilizes much larger allografts that involve removing and replacing half or more of the articular surfaces of the knee. Mizzou promotes these procedures as an alternative to traditional total joint replacements.

The question is, is it safe? Investigation to date reveals a number of serious concerns.

Is this a proven safe procedure?

While the marketing campaigns don’t divulge this, the physicians at Mizzou have only been doing these procedures for about 2 years, so there is NO long term data about the safety and success of these procedures.

Mizzou does not appear to have submitted the clinical results of these procedures to the scientific or medical community for peer review and validation.

Mizzou recently began disclosing to patients that some procedures are known to have up to a 60% failure rate.

Are these procedures part of a clinical study?

In August 2017, several years after Mizzou began performing BioJoint procedures, Mizzou registered a clinical study. The parameters of that study appear to encompass many of the procedures that Mizzou surgeons performed in 2015 and 2016.

Mizzou physicians have grants from the U.S. military to study these procedures.

Does the Mizzou BioJoint have a proven history of long term success?

Mizzou has only been performing the BioJoint procedures since approximately 2015. In the orthopedic field, researchers generally look at 5 and 10 year periods and longer to determine a procedures viability and efficacy.

Mizzou has arguably been researching in this area for an extended time, mainly in “canine models.” In fact, Mizzou’s lead researcher in the field is not a medical doctor but rather a veterinarian. There have been no long term human studies.

If you are considering a BioJoint procedure, please proceed carefully. Get the facts before committing to this procedure.

If you have had a BioJoint procedure and have experienced any of the following, you should consider legal action:

• Multiple reoperations

• Allograft failure

• Conversion to a traditional total joint replacement

• Infection

• Limited range of motion

• Continuing pain

• Disability

HendricksonLaw is actively investigating cases involving failures, infections, re-operation and other issues involving the Mizzou BioJoint.

If you have questions, please contact us immediately. You have a limited time to file any legal action involving the BioJoint procedure.

Mizzou BioJoint is a registered trademark of the University of Missouri.

We are pleased to announce that Todd Hendrickson at Todd N Hendrickson, PC, has been selected to the 2017 Missouri Super Lawyers list. Mr. Hendrickson has been selected to this list since 2012. This is an exclusive list, recognizing no more than five percent of attorneys in the state.

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Super Lawyers, a part of Thomson Reuters, is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.

The annual selections are made using a patented multiphase process that includes:

• Peer motivation
• Independent research by Super Lawyers
• Evaluations from a highly credentialed panel of attorneys

The objective of Super Lawyers is to create a credible, comprehensive and diverse listing of exceptional attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country, as well as the Missouri Super Lawyers Digital Magazine.

Please join us in congratulating Todd Hendrickson on his selection. For more about Super Lawyers, go to SuperLawyers.com.

Medical Malpractice. You hear the term all the time. But what does it really mean?

Is it simply bad medical care? Is it a bad medical outcome? Or is it something else?
Medical malpractice is, at its most basic, simply negligence by a medical care provider, be it doctor, nurse or technician. While it is a complex thing to prove, it really is no different than the type of negligence that causes an auto collision. You could think of that as “driving malpractice.”

Like any legal claim for negligence, a malpractice case is made up of certain elements–the things that must be present in order to legally be deemed negligence. All negligence actions require three basic elements: Duty, Breach, and Harm.


What are the elements of a medical malpractice claims?

DUTY Are you owed a duty, a legal responsibility, by the medical professional? Basically, if you are a patient, you are owed a duty. The doctor, nurse, or medical technician is required to treat you to the level of the appropriate “standard of care.”
Standard of care simply means that the doctor (or nurse or technician) is required to provide treatment in the manner generally expected by their profession. A nurse isn’t held to a doctor’s standard of care, and a doctor isn’t held to a nurse’s standard of care.

The applicable standard of care may be very clear in some cases, or it may be a point of argument among experts. But generally speaking, any medical professional is expected to do what a well trained and qualified equivalent professional would do, or, in some cases, not do.

BREACH A breach of the standard of care is the failure to do something that should have been done, or doing something that shouldn’t have been done. An example of the former would be a failure to diagnose and treat an obvious injury or condition. An example of the latter would be operating on the wrong body part.

HARM Harm is a difficult concept in medical malpractice. In almost every case, the patient is coming in with a condition, injury or disease and the patient is seeking treatment for that condition, injury or disease. Harm, in the context of a medical malpractice claim, only occurs if the ultimate outcome of the condition, injury or disease is made worse, or altered, by the medical care provided or not provided.

An example may help clarify things. If you come into the emergency room with a broken arm and the doctor or nurse is negligent (malpractice), the harm is not the broken arm. There is only harm if the broken arm is made worse by the care, or lack of care. For example, if the broken arm should heal when proper treatment is given, and the arm doesn’t heal, that is the harm caused by the malpractice. A drastic example of this would be a broken arm that isn’t diagnosed and isn’t set, and an infection occurs leading to an amputation. In that instance, the amputation is the “harm” caused by the malpractice.

If you believe you or a loved one has been the victim of medical malpractice contact our office.

According to a study from Johns Hopkins, nearly 700 people per day die as a result of medical errors, reports The Washington Post. That is 251,000 deaths per year. Think about that for a minute …

That makes it the 3rd leading cause of death, behind heart disease and cancer. More than all other accidents combined, more than strokes, Alzheimers, and diabetes. A fully loaded 747 jet holds about 400 passengers. That is the equivalent of 2 nearly fully loaded 747s crashing every day. Let me repeat that: That is the equivalent of 2 nearly fully loaded 747s crashing every day.

And yet, there is no orchestrated campaign to solve this issue. In fact, the medical industry does its best to hide these errors. Congressman, Senators, and State Legislators do their best to limit jury awards for victims of this epidemic. Our elected officials, rather than respond in outrage to this epidemic, work to “build a wall” around the offenders.

Our priorities in this country are backwards. We need to act as a nation to correct these errors. We need to push for full disclosure of these incidents, rather than give doctors and hospitals more power to hide their errors.

I’m very proud of what I and other trial lawyers do to police the medical industry. That is what we do when we bring medical malpractice actions–we are policing the industry. In many cases, we are the only line of defense in the battle against this epidemic.


Johnson & Johnson and its division, DePuy Orthopedics, was hit with a $498 million dollar verdict today in federal court in Dallas Texas, for its defective Pinnacle hip implant. The case involved 5 plaintiffs, all Texas residents, who were implanted with the Pinnacle metal-on-metal hip device.

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Verdict was for approximately $130 million in compensatory damages and almost $360 million in punitive damages.

The trial team was led by Mark Lanier. Our office has been happy to place a small roll in this case and continues to accept additional victims of this truly awful product.

For a consult, please call.

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.