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(This was originally published on the Lawyerist.com blog, April 2, 2014.)

It is 1:30 in the morning, the night before I mediate a major medical malpractice case. I have spent dozens of hours in the last few weeks preparing. I tend to treat a big mediation the way I treat trial — I over-prepare.

Preparation is my security blanket. I pride myself in knowing the case better than the other attorney. I spend hours crafting an opening which, if the mediation is unsuccessful, will lay the foundation for my later opening statement and closing argument in trial.
I spend hours crafting a PowerPoint, and then mercilessly pare it down the day before mediation. It isn’t time wasted — every minute spent reviewing testimony, editing video clips of stupid shit the defendant said, and anticipating defense arguments helps me to be as prepared as I can for my client.

I am as prepared as I can be for this mediation. For my client, I hope that I am successful. But ultimately, nothing I do, no outcome tomorrow, will change this fact:
My client will die.

That is an incredibly difficult sentence to write. As a medical malpractice lawyer it is a situation that I have faced and will face again. Thankfully, not in every case. The emotional toll is too great.
As the mediation has approached, I’ve slept less and less.

I toss and turn, unable to stop the wheels spinning in my head. At times, all too infrequently, the spinning is that of a fine old vintage auto, alternately accelerating and idling, changing gears and eating up the miles, chewing on a problem and arriving at the destination. At other times it is more like a lawn mower that was simply shoved into a corner of the garage at the end of the summer and pulled out the next spring. The gas is stale and the spark plug hasn’t been changed since … well, never.

In the dark my mind sputters, shudders, stalls, and smokes and ultimately ends up going back and forth over the same patch of ground, again and again, arriving at no destination. And all too often my mind is spinning like a piece of machinery in an old cartoon. It runs faster and faster and part of me watches, knowing that, at some point during the long night, it’s going to explode with a clang and gears and springs will fly everywhere. And I will emerge out the other side with my face blackened, my eyes dazed and little birdies spinning around my head.

And all because, no matter what I do, my client will die.

The cancer that is there will take him. Eventually another surgery will no longer be an option. The surgeon who has worked so valiantly, first to try to cure and then to simply prolong his life, will be unable to open him up again. After every operation the tumors recur. They pick up steam, they mutate faster, they grow like the evil beasts that they are. I have talked to those working so hard for this man. I know that eventually these tumors will simple grow so fast and so large that they will fill his abdomen, squeezing his organs, constricting them, until those vital organs fail, one by one and he dies.

What keeps me up at night is the senselessness.

Senseless in that this shouldn’t have happened. As cancers go, my client was afflicted with one that had a high probability of survival. This particular type of tumor is fairly benign in its early stages. It doesn’t tend to metastasize and it doesn’t tend to invade organs. Rather, it grows and pushes them aside, filling up any available space. It is almost always detected when it is grapefruit sized and smaller, because that pushing against organs has led to symptoms that lead to discovery of the tumor.

But in this case, despite more than 2 years of increasing complaints and problems, my client’s doctor didn’t put it together. He didn’t examine my clients increasingly growing abdomen. Instead the doctor opted to assume that each symptom presented was caused by a different benign condition. My client needed him to be a diagnostician. He needed him to be Dr. House. What he got was Dr. Doolittle. As a result, the grapefruit became a cantaloupe. The cantaloupe became a chicken. The chicken became a turkey and the turkey became an ostrich. The tumor grew to an incomprehensible size before it was discovered. And still, there was no Dr. House. Dr. Doolittle diagnosed something else.

Thankfully, the test ordered led to another that discovered the tumor.
Senseless in that, to everyone except this doctor and his attorneys, the facts lead to only one conclusion. You screwed up. Man up. Admit you made a catastrophic mistake. Pay up and let my client try to enjoy the remaining time he has until the cancer literally squeeze the life out of him. Pay up and let him travel or spend time with his grandchildren or experience something he’s always wanted to do. Pay up and let him enjoy his remaining time rather than waste even one of his dwindling days in mediation or in trial.

Instead, tomorrow we go to mediation. The dance that I am all too familiar with will be danced. The mediator will exhort everyone to compromise and exchange the uncertainty of trial for the certainty of a settlement. I will give my carefully prepared opening. The defendants counsel will tell my client that he is sorry for what has happened to him, but the good doctor doesn’t believe he did anything wrong. Still, they are there in the spirit of compromise to try to resolve this case. My client will listen to this and will bravely refrain from saying anything in response to this insult. I will restrain myself from screaming my frustration.

And the doctor will say nothing. In fact, he probably won’t even have the guts to show up. He will have consented to a settlement and will send the insurance adjuster and the lawyers to resolve his mess.
I don’t know if we will settle this case or not. For my client’s sake I hope so. I don’t want him to spend even one of his remaining days in trial, listening to the ridiculous testimony of experts seeking to excuse what the doctor did. But part of me wants to take this case to a jury and watch their reaction as the evidence unfolds, to see the expression on their faces as they see the photos of a tumor the size of an ostrich. I want to hear the verdict returned and I want to be able to expose this for the injustice it is.

I don’t know what will happen later today. I only know my client will die.

Postscript

I’ve waited almost a week to come back to this piece of writing. The mediation was held the day after I wrote this. The result of the mediation is, by agreement, confidential. The doctor was a no-show. Defense counsel did his job and tried to show my client how the good doctor didn’t do anything wrong. He attacked my expert witnesses as hired guns. In fact, all my experts were full professors, heads of their respective departments at prestigious medical schools.
Through all this my client sat and listened and held his tongue. When he had the chance to speak to the mediator privately he did so eloquently and succinctly. Throughout the entire process, from the first day I met this client, he exhibited grace and dignity. I guess that is what makes knowing that he will die because of someone’s mistake all the more painful.

In recent weeks, a study has been released showing what my practice had told me for years: the most common cause of a medical malpractice claims is diagnostic errors. This infographic lays out the most compelling statistics. Knowing that this is happening day in and day out only makes it more difficult.

Originally appeared on Lawyerist.com’s law firm client service portal

On August 13, 2018, the Circuit Court of Boone County rejected the University of Missouri Curator’s motion to dismiss the pending lawsuits against the University of Missouri over the Mizzou BioJoint.

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To date, our office has filed 5 lawsuits against the University of Missouri, Dr. James Stannard, James Cook, DVM, and others over the so-called Biojoint surgery. Orthopedic surgeons at Mizzou, including Dr. Stannard, have promoted Mizzou as the only place in the world to have biologic knee replacement. The procedure involves removing portions of the surfaces of the patient’s knee and replacing them with donor (cadaver) bone and cartilage. While using this technique to replace small, isolated areas of damaged cartilage, previous studies have shown that it is unlikely to be successful as a treatment for arthritic knees. Despite that, Mizzou surgeons continue to perform the surgery.

The lawsuits we have filed include allegations against the University Curators under the Missouri Merchandising Practices Act, alleging that the University has misrepresented the procedure, the procedure outcomes and risks to patients in order to induce them to have the surgery. The Curators moved to dismiss the counts, but the Court denied their motion.

If you have had a Mizzou Biojoint procedure, and have had any complications, please contact our office.

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
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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.

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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.

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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.

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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.

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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 .