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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.

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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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?

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

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.

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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.

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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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