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Cheaper to Kill than Hurt: Why it is Less Expensive for a Doctor to Kill than Injure by Malpractice

Posted on by Matt Hamilton

Why it is Less Expensive for a Doctor to Kill than Injure by Malpractice

Patient #1 – Stephens Johnson Syndrome

A patient goes to the doctor for a common cold.

  • He is sneezing; he is coughing.
  • He is running a fever.
  • He tells the doctor he is allergic to antibiotics.

In spite of this, the physician prescribes Ceftin for the infection, and Motrin for pain.

Patient #2 – Catheter Extravasation

A patient has cancer.  She needs to take the chemotherapy drug Vincristine intravenously so that this liquid medication can reach the target cancer.

The medical professional erroneously administers this irritant solution.  The Doctor pushes the needle too far.  Instead of going where it’s supposed to, the chemotherapy medication drips into the body.  There is progressive blistering, inflammation, dead tissue, and worse.

Cheaper Dead than Alive.

One of these patients lives; one of these patients dies.  It may amaze you to learn that the patient that lives likely has a much more valuable case than the patient who died.  This article explains the differences between damage awards in malpractice wrongful death cases and malpractice personal injury lawsuits.

The Test For Personal Injury Malpractice

To win a personal injury (non-death) medical malpractice case whether it be a situation like Stevens – Johnson Syndrome, a prescription drug error, or extravasation, the test is as follows:

  • First, the victim must show the physician did something or failed to do something his profession requires;
  • Second, the doctor must be found negligent.  This means a “the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances” by members of his profession.
  • Third, the victim needs to show she was damaged as a direct result of the doctor’s failure.

Paraphrase of M.A.I. 21.01 (1988 Revision) and M.A.I. 11.06 (1990 Revision).

Legislative Limits On Malpractice Compensation

Many states have enacted legislative “caps.”  These caps place a ceiling on the maximum amount any innocent victim can recover for medical malpractice.  For example, Missouri Statute § 538.210 places a cap on damages against any healthcare provider for injury or death they may cause.  It also places a cap on the surviving spouse’s damages.

The cap on damages for 2018 non-catastrophic economic damages amounts to $420,749.  This means a personal injury medical malpractice drug victim with a million dollars in damages can recover the full million dollars they have lost.  If they die, the family can recover less than half that amount, even though the damages are far greater.

The Unconstitutional Cap on Personal Injury Drug Error Cases

The Supreme Court in 2012 found that for personal injury actions, any legislative cap on the total amount of damages a victim may recover violates their Seventh Amendment Right to Trial by Jury, also guaranteed by Article I, Section 22 (a) of the Missouri Constitution.  Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Mo. banc 2012).  This constitutionally allows injury victims of drug errors full compensation up to the reasonable amount as determined by the judge or jury.

There Remains a Cap Limit on Death Cases

Why are wrongful death cases different?  It is an old distinction from before the English Common Law.  Traditionally, Julias Caesar is quoted as beginning the expression “mortui non postulant” translated as “dead men don’t sue.” In wrongful death cases, as opposed to personal injury cases, death mattered.

There was no right for the family to sue on behalf of a dead family member irrespective of the damage or how bad the conduct was.  This led to many unfair situations.  The legislatures stepped in and passed the wrongful death statutes.

Why Wrongful Cases Can Have Money Limits

The case of Dodson v. Ferrara, 492 S.W.3d 542, 544 (Mo. 2016) came along.  In Dodson, the Supreme Court ruled that wrongful death remains a creature of statute.  In weighing cap rights, you are not dealing with constitutional rights.  The legislature of a state can control a lawsuit that it created by taking money away from innocent victims, if that is the legislature’s desire.

In short, lawmakers can define the recovery if the lawmakers create the type of lawsuit. Id. Here, since lawmakers passed the wrongful death statute, so too, the lawmakers can limit the death recovery.  See Sanders v. Ahmed, 364 S.W.3d 195, 200 (Mo. banc 2012).

A Victim’s Constitutional Rights Don’t Matter.

  • Does equal protection matter?
  • How about separation of powers?
  • What happened to the victim’s trial by jury right?
  • What about cases with aggravating circumstances?

The Supreme Court considered all of these factors.  It ruled no such Constitutional rights matter and only apply to personal injury claims.  Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Mo. banc 2012).

When Constitutional Rights “Stick”

Unlike wrongful death lawsuits, the common law existed before our Constitution.  That court-created law recognized personal injury lawsuits.  Therefore, the Constitution adopted those protections and a legislature cannot pass a mere law to limit those Constitutional rights.

This may seem unfair and a breach of essential rights.  Indeed, the Supreme Court of Missouri has gone so far as to state “guarantees do not mean that the State may never make distinctions between individuals or groups of people.”  Further, “the state may treat different groups differently. Comm. For Educ. Equality v. State, 294 S.W. 3d 477, 489 (Mo. 2009).

What to Do

It is important to have a lawyer with specific experience with both wrongful death and personal injury cases.  Extravasation can cause injury. Extravasation can cause death.  Drug errors can lead to Stevens – Johnson Syndrome.  Stevens – Johnson Syndrome can progress to Toxic Epidermal Necrolysis. T.E.D. and can cause death.

The difference between an injury and death can mean millions of dollars of differences in case value, irrespective of other circumstances.  This distinction must be looked at from early in a case to avoid the trap, when possible.

Matt in front of booksAuthor:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney

How to Overcome Uncertain Treating Physician Testimony in Prosthetic Amputation Lawsuits

Posted on by Matt Hamilton

How to Overcome Uncertain Treating Physician Testimony in Prosthetic Amputation Lawsuits

Amputation cases, especially where a prosthetic is needed, present unique legal problems.  The amputee may presume the cost of future medical treatment is a certainty.  This is far from the truth.  A number of problems may rob the accident victim of their ability to pay for future prosthetic costs and other medical treatment.  This article teaches ways to overcome medical physician testimony problems.

Treating physicians often tell an amputee victims that the accident was certainly the cause of their injury. The Doctors will say they will “back them up” with whatever help they may need.  Once the lawsuit starts, and insurance companies ask questions, the doctors retreat.  Their testimony can even be harmful.  The primary method is the doctor appearing to support the patient; but in reality the Doctor’s testimony harms their patient’s legal needs.

Physician Failure to Understand the Legal Standard

The problem is the standard to get testimony into evidence in court.  Courts have requirements called “foundation.”  A witness may “say” something; but if what the witness says does not have a foundation, the jury or judge will not consider (or even hear) it.

Mixing “Certainty” up with “Reasonable Medical Certainty”

With physicians, this is the “reasonable medical certainty” standard.  For example, in Missouri, the Supreme Court ordered in cases like Swartz v. Gail Webb Transportation Corporation, 215 S.W. 3d 127, 130 (Mo. banc 2007), admissible evidence must be “to a reasonable degree of medical certainty.” This means it must be “more likely than not” or greater than 50% likely.

Herein lies the problem.  Physicians will quaff that they cannot say with absolute certainty or cannot be accurate in predicting what a patient will suffer or need in the future and therefore cannot say with certainty.  This will mean their testimony does not get into evidence and the amputee victim loses.

Dr. Jonas Rappeport, MD, wrote a lengthy article about physician uncertainty and legal testimony in 1985.  Reasonable Medical Certainty, Bull. Am. Acad. of Psychiatric Law, Vol. 13, No. 1, 1985.  In that article, Dr. Rappeport called the American legal standard a “legal fiction” and void of any practical meaning for physicians.  In essence, if a doctor cannot meet this legal standard, he is saying nothing at all.

Passive Qualifying Words

A second problem is physicians that give opinions, saying words like “might,” or “possibly,” or “could.”  Again, these are not opinions to “a reasonable degree of medical certainty” and may be excluded by a trial judge.  A Missouri court as early as 1965 addressed this.

The Court in Bertram, v. Wunning, 385 S.W. 2d 803 (Mo. App. 1965) considered the standard.  Herein, the court indicated that expressions like could, might, or possibly are common instances of language used by experts in the field.  The court recognized that as long as the physician indicates his opinions are to a reasonable degree of medical certainty, even though the physician may use qualifying language, the testimony is admissible.  Thus, the first problem with physician uncertainty is overcome.

The Uncertain Future of the Patient

A second problem is the uncertainty of future medical treatment or repercussions.  Doctors helping amputation victims cannot see the future.  Future treatment or negative outcomes may be dependent upon events that do not occur.  This second problem is physicians saying this may not occur unless one or two or three other events happen.  Therefore, they give the opinion they cannot say to a reasonable degree of certainty because they do not know the certainty of these future events.  This challenge can also be overcome.

Events that May Only Occur if Something Else Happens

The Missouri Supreme Court in the case of Bynote v. National Supermarkets, Incorporated, 891 S.W. 2d 117, 124-25 (Mo. banc 1995) addressed this issue.  The court ruled that evidence of future treatments and even its costs may be admitted before a trial court or jury.  The evidence can “come in” even when the medical treatment would be dependent upon the outcome of other events, such as more conservative medical treatment.

In Bynote, the court considered a victim that would only need the additional treatment, if they later began suffering a locked back.  Surgery was possible but not recommended by the treating physician.  Still, it was admissible as a possible future consequence.

The Missouri Supreme Court in the case of Breeding v. Dotson Trailer Repair, 679 S.W. 2d 281, 283 (Mo. banc 1984) considered a case where the patient did not want the surgery.  In Breeding, the accident victim testified they did not want surgery.  Furthermore, the victim’s physician indicated surgery would only be needed if and only if conservative treatment failed.  Still, since surgery was a possibility given future events, it was admitted.

This was later expanded in the case of Emery v. Wal-Mart Stores Incorporated, 976 S.W.2d 439 (Mo. App. 1998).

These are two ways in which uncertain physician testimony can be admitted so that an amputee can receive compensation for future treatment, even when it is uncertain or dependent upon other factors.

Look to other materials on our page for Amputation Lawyers and personal injury claims.

Author:

Matt Hamilton

  • Trial Lawyer
  • Juris Doctor

 

How Lawyers Manage Governmental Immunity in Wrongful Death & Personal Injury Cases

Posted on by Matt Hamilton

How Lawyers Deal with Government Sovereign Immunity for Wrongful Death and Personal Injury

     Example:  An IV catheter mistake leads to wrongful death

Bethany Johnson was a patient at a Kansas City, Missouri hospital.  She was undergoing chemotherapy to treat her cancer.  Her physicians decided to give her the cytotoxic chemotherapy drug Taxol through a peripheral vein.

  • They failed to check for leaks.
  • They failed to check for a back flow.

Ms. Johnson informed the nurses she was experiencing pain and burning in her arm that seemed to be spreading.

  • They continued giving the cytotoxic chemotherapy drug in spite of her report.

Ms. Johnson then reported blisters and ulcers on her arm that seems to be spreading.  She felt sick like she had the flu.

  • Her nurses’ aides and the physicians did not switch to a central vein catheter.
  • Johnson was not treated.

Her extravasation injury led to the amputation of her right arm.  This extended her hospital stay, caused an infection, and ultimately her death.  Ms. Johnson was staying at a hospital owned by the government.

Can her survivors recover for their loss?

The History of Governmental Immunity from Wrongful Death and Injury lawsuits

“Sovereign immunity” has a long historical tradition in our court system.  We adopted our laws from the British common court system.  The British adopted its laws from Rome and the Catholic Church.

Each of these systems lived by the principle that “the king can do no wrong.”  See Guy Seidman, The Origins of Accountability: Everything I Know About Sovereign Immunity, I Learned from King Henry the Third, 49 St. Louis U. Law J. 393 (2004).  In short, the government cannot be sued in court for money unless it consents.

Governments Have Immunity from Wrongful Death Claims In Most Circumstances

Our legislature has enacted statutes following up injury accidents and wrongful death claims against the government.  This is codified in R.S.Mo. § 537.600.

The sovereign immunity statute for wrongful death and injury lawsuits adopts the immunity of government as existed in the common law of courts prior to 1977.

Two Exceptions to Sovereign Immunity

“Sovereign immunity is the rule rather than the exception.”  Benoit v. Mo. Hwy. & Trans. Comm’n, 33 S.W.3d 663,673 (Mo.App. 2000).

However, our statute carves out two exceptions where the government can be sued for wrongful death or injury.  These exceptions are as follows:

  1. Injuries caused by the negligence of a public employee while operating an automobile within the scope of their employment.
  2. Injuries caused by the condition of a public property.  This is when the premises is in a dangerous condition at the time of injury.  The dangerous condition must have been created by a reasonably foreseeable risk of harm and be the type of injury that the victim actually suffered.  The employees had to have actual or constructive notice of the condition with sufficient time to protect the victim but failed to do so.

Municipal City Governments Only Get Partial Immunity

State governments get full 100% immunity when they don’t carve out an exception for themselves.  Cities are not so lucky.  Municipalities only get sovereign immunity when they are conducting a “governmental function.”  Richardson v. City of St. Louis, 293 S.W.3d 133,136-37 (Mo.App. 2009).  Cities do not get immunity when they are merely providing a “proprietary function.”  Crouch v. City of Kansas City, 444 S.W.3d 517,521 (Mo.App. WD 2014).  This means a wrongful death or injury victim can sue a city if its negligent act was a proprietary function.

What Is a “Governmental” vs. “Proprietary” Function?

The distinction between a governmental function and a proprietary function for a wrongful death or a personal injury case against a city is the difference between you being able to have your lawsuit and collect money compensation and not having a lawsuit at all.  The courts are highly inconsistent in making the distinction between governmental and proprietary functions.  Jones v. State Hwy. Comm’n, 557 S.W.2d 225,229 (Mo. banc 1977).  Worse, they even produce “uneven and unequal results which defy understanding.”  Id.

Courts look to the nature of what the government is doing at the time it caused the injury to determine whether it is a governmental or a proprietary function. Courts look at what that government person was actually doing that caused the injury and why they were doing it.  St. Joseph’s Light & Power Co. v. Kaw Valley Tunneling Inc., 589 S.W.2d 267 (Mo. banc 1979).  The type of lawsuit does not matter.

When Is It a “Governmental Function?”

A governmental function that will allow the city to claim immunity from a wrongful death lawsuit or a personal injury claim will focus on whether the person doing the act was an agent of the state government.  Bennartz v. City of Columbia, 300 S.W.3d, 259 (Mo.App. W.D. 2009). Look to who they were benefiting.

  • Were they benefiting the general public?
  • Were they benefiting the common good of all?
  • Was the person keeping the peace by enforcing laws and ordinances?
  • Was the person preserving public health?

Kunzie v. City of Olivette, 184 S.W.3d 574 (Mo. banc 2006); Parish v. Novus Equities Co., 231 S.W.3d 242 (Mo. App. 2007).

The city can claim immunity and dismiss your lawsuit if it can convince the court it was acting merely as an agent of the state government for the functions outlined above.  It will claim that no exception is outlined in Mo. Stat. § 537.600 or anywhere else.  The city will move to get a dismissal of your wrongful death or personal injury case.

What is a “Proprietary” Function?

A proprietary function does not have sovereign immunity.  The city can be sued for merely providing a proprietary function that injures or kills.  These functions are those that benefit or profit the municipality itself in its corporate capacity.  In other words, they benefit or provide services or convenience to the city’s individual citizens.

Lawyers:  Do Not Forget This!

A lawyer bringing a wrongful death or a personal injury case against a city municipal government must remember; governmental sovereign immunity is not an affirmative defense.  Do not merely file your petition like normal and wait for an affirmative defense to be pled out under Rule 55.27.  You will have your petition dismissed.

The victim has a requirement that they must plead, not only allegations of the waiver of sovereign immunity, but also the specific facts that give the victim the exception to sovereign immunity.  Richardson v. City of St. Louis, 293 S.W.3d 133,137 (Mo.App. 2009).  It is the victim’s burden to demonstrate that the city government was engaged in a proprietary function at the time that the person was wrongfully killed or injured.  Cover this in advance before you get a motion to dismiss.

Conclusion

One can see from the case of Ms. Johnson that there is a vast difference between claims made for extravasation, wrongful death, personal injury, and other situations based upon the type of hospital or medical care provider that did the error.  City hospitals may have partial immunity.  State hospitals may have complete immunity.  The specific but critical distinction must be prepared for and covered in advance.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney