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I’m pleased to share 10 Red Flags in General Surgical Malpractice Cases, published in the September 2012 issue of Trial magazine. Trial is the peer-reviewed journal of the American Association of Justice, the national trial lawyer’s association.

I was honored to be asked to contribute to such a prestigious publication.

Just a quick addition to my two previous posts regarding the Missouri Supreme Court’s decision declaring that caps on medical malpractice damages are unconstitutional: see the Post Dispatch’s editorial here.

As reported here, the Missouri Supreme Court, in Watts v. Lester E. Cox Medical Centers declared that caps on medical malpractice cases are unconstitutional. So, if you have a medical malpractice case in Missouri, what does that mean for you?

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First, if your case involves a death, it is not clear whether the limitation on damages is still in effect in those cases. In April, 2012, the same Court upheld caps applied in a medical malpractice wrongful death case. That case, /Sanders v. Ahmed was actually decided based on the pre-2005 law on medical malpractice caps. However, that decision may be read as standing separate from the Watts decision. In short, whether caps apply in wrongful death medical malpractice cases is still an open question.

Second, in cases involving injuries, but not death, the Watts decision is unequivocal. Caps on the amount of damages that a jury can award on cases that existed under the common law, such as medical malpractice claims for injuries, are unconstitutional. Without an amendment to the Missouri Constitution, legislation seeking to impose such limits will not be upheld.

Third, for active cases, and cases yet to be filed, a Court cannot impose a limit on the damages awarded for non-economic injuries, such as pain and suffering. Under the law declared unconstitutional, the amount of those damages was limited to $350,000. While that may seem like a lot of money, in situations involving life long injury and disability, it is readily apparent that the limitation was crippling. Children injured a birth, who would deal with life-long disability, were not fully compensated. Now, that restriction is lifted.

Fourth, if you have had a medical malpractice case resolved under the old law, whether it resulted in a judgment or a settlement, you won’t be able to go back and re-open those cases to achieve a bigger settlement or verdict. If the decision wasn’t appealed, then the case is final and you won’t be able to reopen it.

Obviously, the actual monetary affect on a particular case is going to vary. If you have a current medical malpractice case you should consult with your attorney about the impact. If you believe that you or a loved one was injured as a result of medical malpractice and would like to discuss your case, please call 1-800-567-8176 for a consultation.

On July 31, 2012, the Missouri Supreme Court issued its opinion in the case of Watts v Lester E. Cox Medical Centers. In a well-reasoned and detailed opinion by Chief Justice Richard B. Teitleman, the Court found unconstitutional the legislatively imposed limitations on damages that a jury can award in medical malpractice case found in §538.210 of the Revised Statutes of Missouri.

The law, passed as a component of sweeping changes to tort law in 2005, placed a limit of $350,000 on non-economic damages that could be awarded in a medical malpractice case.

The Missouri Supreme Court found that the limitation infringed on a jury’s duty, under the Missouri Constitution, to determine the facts in a medical malpractice case. One of the facts that a jury is charged with determining is the amount of the damages. Because the Missouri Constitution declares that the right a jury shall remain inviolate, the Supreme Court looked to whether the right to a jury, as it existed at the time the Missouri Constitution was adopted, included the right to have a jury determine damages. The Court held that it did and, therefore, §538.220 infringed on that right and was, therefore, unconstitutional.

The result is that a jury is not artificially limited in the amount of damages it can award. Of course, the jury’s judgment is still subject to review and revision by the Courts, both at the trial and appellate level. Either can chose to reduce an award based on the judicial power of remittitur.

Johnson & Johnson’s DePuy division may be facing more than $3 billion in damages for its ASR and Pinnacle metal-on-metal hip implants, reports Reuters. Not a surprise to those of us involved in the metal-on-metal implant litigation.

DePuy recalled the ASR metal-on-metal implant in 2010, years after evidence in Europe and Australia showed that these implants were being revised at a rate drastically hirer than traditional ceramic or poly implants. DePuy was forced to recall its ASR implants here in the U.S. after it became clear that a significant percentage of patients with these implants were experiencing metal debris reaction, which included pseudo tumors, infection-like reactions, loss of bone and muscle due to metallosis, early loosening and early failure.

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Shortly after the ASR was recalled, it became clear to many that DePuy’s Pinnacle line was having similar problems. As calls poured in to attorneys around the country regarding the recalled ASR, a significant percentage of the calls were for DePuy Pinnacle implants with nearly identical problems.

Multi-district litigation cases are on-going for both the ASR and Pinnacle implants. MDL cases are contemplated regarding other metal-on-metal implants from other manufacturers. In recent weeks, Stryker has issued a recall on its modular stem system, the first non-bearing surface recall. (The DePuy and Pinnacle cases involve the weight-bearing implant surfaces, namely the artificial ball and cup joint that replaces the natural hip mechanism–Stryker’s implant is a modular femoral stem system that appears to be causing similar reactions as the bearing surface metal-on-metal implants, but due to corrosion at the connection of the modular components, rather than wear due to use of the bearing surfaces.) You can read about the Stryker recall here.

It is clear that there is trouble brewing for many, if not all, metal-on-metal hip implants. If you have experienced any of the following problems as a result of your metal-on-metal implant, please call our office at 1-800-557-8176:
Early Revision
Loosening
Pseudotumor
Metallosis
Implant Failure
Loss of Surrounding Muscle
Continuing Pain

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Another hip implant has been recalled. Stryker Orthopaedics has recalled two brands of its devices, as reported here. Unlike previous recalls by DePuy which were of the metal-on-metal implant contact surfaces, consisting of a metal ball and a metal hip socket, the Stryker recall is of femur stem implants.

Post-implant complications indicate that the Rejuvenate and ABG II modular-neck systems are experiencing fretting and corrosion at the modular neck junction. This corrosion and fretting appears to be leading to the same kind of patient reactions as the metal-on-metal head implants.

It would appear that patients may expect to encounter metalosis, pseudo tumors, aseptic loosening and other problems.

If you or a loved one have Stryker implant and have experienced any problems, please call our office at 314-721-8833.

Elizabeth Cohen, CNN’s senior medical correspondent, has posted Medical Mistakes: Patient’s Stores: 10 Shocking Medical Mistakes.

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In a well-written piece, citing real examples of patient victims, Cohen outlines 10 common medical mistakes that represent easily prevented, easily corrected medical malpractice. These mistakes are estimated to cause more than 250,000 deaths per year in the U.S., and injuries to millions more.

1. Treating the wrong patient–failing to identify the patient;

2. Surgical “souvenirs”–surgical instruments and sponges left in patients;

3. Lost patients–dementia patients being lost or wandering off;

4. Fake doctors–people posing as doctors or doctors who have had their licenses revoked continuing to practice;

5. ER waiting game–failure to properly triage patients;

6. Air bubbles in blood–a deadly and preventable complication of chest tubes and IV lines;

7. Operating on the wrong patient–failing to identify the correct patient and the correct procedure;

8. Infection infestation–bad hygiene by doctors and nurses;

9. Lookalike tubes–medication vials that look deceptively similar with terrible consequences;

10. Waking up during surgery–insufficient anesthesia, causing injuries when patients awake

These 10 mistakes seem so obvious, that many people think they simply can’t occur that often. But they do, with alarming frequency.

If you or a loved one were injured or killed as a result of medical negligence, please call for a consult. STLMedicalMalpractice.com

A federal judge in Charleston, West Virginia has set the first Bard vaginal mesh case for trial next February, reports Bloomberg News.

The U.S. FDA issued a report last year finding that vaginal mesh products should be classified as posing a high risk to patients based on its review of side-effect reports. The mesh products are inserted vaginally and used to stop pelvic organs from bulging, called prolapse. They are also used in treating incontinence.

If you think you have been injured by a vaginal mesh product, whether manufactured by Bard, Johnson & Johnson or others, please contact our office to discuss a possible claim.

At least one person has died and dozens were injured when a beer garden tent collapsed in a storm Saturday afternoon, reports the St. Louis Post Dispatch.

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A line of strong storms passed through St. Louis just before 4pm. Kilroy’s bar, south of Busch Stadium at 720 South Seventh Avenue had set up the tent as a beer garden. Reports indicate that the tent was permitted and inspected, but the investigation continues.

If you or a loved one was injured in this incident, please call or contact us at hendricksonlaw.com to discuss possible claims.

“American hospitals are capable of great medical feats, but they are also plagued by daily errors that cost lives.” So begins a recent article by the AARP, titled Hospitals May Be the Worst Place to Stay When You’re Sick.

The AARP reports several statistics that may be shocking to those who don’t deal with these issues, day in and day out. For example:

? Each year as many as 100,000 American die in hospitals from preventable medical mistakes

? A report on Medicare patients released in January found that hospital staffs don’t report 86% of harms done to patients

? An HHS study found that 1 in 7 patients suffered serious or long term injuries, or died as a result of hospital care

? 44% of the problems are preventable

? The patients who die each year from preventable hospital errors equal four full jumbo jets crashing each week

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If you suspect that you or a loved one are the victim of this type of medical negligence, please call me to discuss. 314-721-8833 or 800-557-8176 or view my website STLMedicalMalpractice.com.