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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 Get Punitive Damages to Punish the Manufacturer of a Defective-Dangerous Product

Posted on by Matt Hamilton

SHOULD MY DEFECTIVE DANGEROUS PRODUCT CASE REQUEST PUNITIVE DAMAGES TO PUNISH THE MANUFACTURER?

Dangerous products cause accidents that harm Americans every day.  Manufacturers fall “in love” with their own designs and fail to see how their product will injure or kill their customers.  Instead, manufacturers blame the victim.  Corporations ignore notices they have sold a dangerous product to an innocent customer.  Too often, when a manufacturer becomes aware that its creation is dangerous, the company attempts to hide the evidence.  Corporations too often do not warn the users of their products of hidden dangers that injure and kill.

The Benefit of Defective Product Lawsuits

Lawsuits often are necessary to receive compensation for injury and death because of defective products.  Punitive damages to punish the manufacturer are often not considered.  This “extreme” accusation is often appropriate but not used.  Defective product claims benefit society by motivating those that design, test, and manufacture to be more diligent in preventing personal injury and wrongful death.  This article teaches when punitive damages are appropriate.

The Benefit of Punitive Damages

Punitive damages were created to benefit society.  They are a means of taking money from a defendant who has harmed or killed by their outrageous conduct or complete indifference to the safety of others.  In this manner, society benefits from safer products.  Innocent victims benefit by warnings that put them on notice of the dangers of deadly products.

Challenges to Winning Punitive Damages

There are many challenges to winning punitive damages claim from an injury accident.  Courts are reluctant to approve punitive damages.  This is because of their unusual and rare use.  This is also because of the difficult legal standard to prove punitive damages.

A second challenge is when corporations hide the evidence of their own wrong-doing.  When evidence is thin, passing the legal test for punitive damages is difficult.  Third, the accusation of punitive damages adds complexity to already complex cases.  Many lawyers are unable to manage this added complexity.  Other lawyers do not bring the claim because of ignorance of punitive damages law.  Still other lawyers do not bring punitive damages claims because they are uncomfortable with litigation of the punitive damages issue because of inexperience.  Fifth, the punitive damages claim can be a distraction from other necessary elements in a case, if the punitive damages claim will not proceed to the jury.  These five barriers to the bringing of punitive damage claims in accident injury cases makes them rare.

The Test to Win Punitive Damages

The test for a punitive damages claim in an injury accident is as follows:

Clear and convincing evidence is needed so that a reasonable jury could conclude that it was highly probably that the defendant’s conduct was recklessly indifferent.

In a defective product case, the following test is often used:

  1. Did the manufacturer or corporation place the defective product into commerce?
  2. Is the product unreasonably dangerous?
  3. Did the manufacturer have actual knowledge of the defective?
  4. Did the defendant consciously disregard the safety of others?

Clear and Convincing; Not Just More Likely Than Not

Ordinarily, a more likely than not or greater than 50% likelihood is standard for civil cases.  Punitive Damages evidence must past a heightened test of being both clear and convincing.  This clear and convincing evidence standard is a difficult one to pass.

The heightened clear and convincing evidence also adds difficulty to other case aspects.  This has been discussed in detail in cases such as Letz v. Turbomeca Engine Corp., 975 S.W.2d 155, 164-65 (Mo.App. W.D. 1997).  The courts require evidence that the defendant showed a “complete indifference or conscious disregard of the safety of others.”  See Barnett v. La Societe Anonyme Turbomeca France, 963 S.W.2d 639, 659 (Mo.App. W.D.1997). In Barnett, the court discussed in detail the various standards and the differences between punitive damages, strict product liability lawsuits, and ordinary negligence cases.

What is Complete Indifference?

The “conscious disregard or complete indifference” standard for punitive damages in accident cases includes circumstances where the person doing the wrongful act or failing to do a proper act is “conscious from the knowledge of the surrounding circumstances and existing conditions that their conduct or failure to act will naturally and probably result in injury.”  In short, the wrongdoer does not need a specific intent to injure you or kill.  The death or injury merely needs to be the natural and probable result.

Is Proof of Evil Motive Needed?

Defendants often argue that the conduct must be outrageous and include an evil motive.  This is indeed the standard discussed in cases such as Blue v. Harrah’s North Kansas City, LLC, 170 S.W.3d 466, 477 (Mo.App. W.D. 2005).  However, the lawyer must keep in mind the phrase that follows all the evil motive discussion.

The standard includes actions that show a “reckless indifference to the rights of others.”  This “reckless indifference” language arose from a case where a person fired a pistol into a crowd.  The perpetrator did not have a specific intent to harm any particular person.  The defendant did not intend to injure or kill and lacked an evil motive.  However, it was reckless.  Firing a bullet into a crowd will naturally and probably result in injury; in spite of a lack of specific intent to kill or an evil motive.  This is the genesis of punitive damages and should be used in your case.

How Likely Was Injury?

There is a further ability to get punitive damages.  This is in cases where the defendant either knew or had reason to know there was high probability that their conduct would result in injury.  The Supreme Court of Missouri spoke about this in detail in the case of Lopez v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 160 (Mo. banc 2000).  In Lopez, the defendant’s conduct was tantamount to an intentional wrongdoing. This was because the natural and probable consequence of their conduct was injury.

In your case, the circuit court will need to determine whether your evidence (giving full credit to the jury’s right to determine witness credibility, weigh the evidence, and draw inferences from it) is sufficient to permit a reasonable jury to conclude with convincing clarity that it was highly probable that their conduct was outrageous because of reckless indifference. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

What is the Benefit of Claiming Punitive Damages?

I encourage you to go through the full analysis of punitive damages for the evidence in your case.  There are many benefits to bringing punitive damages in the matter.  It increases the likelihood of settlement.  It increases the value of cases.  It increases the willingness of defendant to become reasonable.  It allows added flexibility during trial.  It will increase the chances that you will have reasonable value for your case.

Most importantly, punitive damages are is the only real means of convincing indifferent manufacturers and corporations to stop harming innocent victims and change the way in which they do business.  Punitive damages are a real opportunity for you to benefit society.

reading law bookMatt Hamilton

  • Juris Doctor
  • Trial Attorney

 

More Relevant Articles:

  1. Dudley McCarter, Seller of Product is Not Liable Unless Shown to Have Reason to Know, 71 J. Mo. Bar 76 (2015).

 

 

 

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

 

 

6 Silly Things People Do in Court

Posted on by Matt Hamilton

Personal injury trial attorney Matt Hamilton teaches the six silliest mistakes he sees people make in court.

Matt explains each mistake, why the error harms the person’s chances in court, and how each mistake can be avoided, or corrected.

Author:

Matt Hamilton

  • Trial Attorney
  • Juris Doctor

How To File Your Wrongful Death Claim Past The Time Deadline

Posted on by Matt Hamilton

How To File Your Wrongful Death Claim Past The Time Deadline

Grieving families delay hiring an attorney and filing a lawsuit for the wrongful death of a family member for many reasons.  They may not realize how quick time flies.  A delay in hiring a wrongful death lawyer can lead to the time to file the claim having elapsed.  This article explains the time deadlines for wrongful death claims and when longer time periods may be used.

A Bicycle Pedestrian Accident Leading to a Wrongful Death

Tom is an eleven-year-old boy from Lee’s Summit, Missouri.  He rides his bicycle to school.  He crosses Mo. Highway 50 on his way to junior high school daily.  Tom is a good boy and obeys the traffic signals.

School starts often before sunrise, while people are hurrying to work.  One day while crossing an intersection, Tom and his bicycle are hit by an automobile following a motorcycle, both running a red light.  The motorcycle gets away.  The vehicle stops and waits for the police and ambulance to arrive.

Tom’s family is rightfully devastated and grieving.  It takes a long time for them to get back on their feet.  They delay seeking a lawyer because of the unpleasant nature of the claim.  More than two years elapses.

  • Do they still have a claim?
  • How do they pay the bills?
  • What is a lawyer to do?

Statutes of Limitations; How they are Avoided; When they Bar Claims.

Claims for the death of a family member must be brought under the wrongful death statute.  This is Mo. Stat. § 537.080.  It states that when a person has died because of the wrongful act of another, the spouse, living children, or surviving relatives of the deceased may bring a lawsuit on the descendant’s behalf.  Only one claim may be brought.  The people who stand to benefit are “the wrongful death class.”  Id.

Why History of Wrongful Death Statutes is Important to You. 

Wrongful death lawsuits did not exist traditionally in America or Britain.  There is some debate whether commong law courts in Britain and America recognized the right to sue for the death of a loved one.  However, the majority of courts believe such “judge” court claims did not historically exist.

This lack of the right to sue when someone wrongfully kills another lead to many unjust results.  In response, American State legislatures passed wrongful death statutes in the mid 1800s to allow justice for those who have suffered the ultimate loss.

The Purpose of Wrongful Death Lawsuits

The purpose of the wrongful death statutes is as follows:

  1. Provide compensation to wrongful death class members for their loss
  2. Ensure that wrongdoers pay for the consequences of their actions
  3. To detour wrongful conduct that may lead to death.

O’Grady v. Brown, 654 S.W.2d 904, 909 (Mo. banc 1983).

What Is A Statute Of Limitation?

The term “statute of limitations” is a legal term defined as a time limit imposed by the legal system in which a claim, lawsuit, or criminal action can be filed in court.  It is the maximum period of time a victim can delay before filing their lawsuit.

The History of Statutes of Limitation

Statutes of limitations have a history that goes back to the year 1066 in English common law.  This is right after the conquest of Britain by William the Conqueror.  This was the origin of the English law, what we call “common law.”  America adopted it as colonies, then as a nation.

Why Do we Have Statutes of Limitations?

The idea of the statute of limitations is to ensure the parties will be diligent in their efforts.  The purpose is primarily to protect the defendant, in criminal cases as well as civil cases.  These laws encourage lawsuits to be filed while the evidence is still fresh and witnesses’ memories are still clear.

Time Periods for Statutes of Limitation

The statute of limitation time period differs from state to state.  The time period differs from case type to case type.  If the time period for a statute of limitation elapses, you can no longer file a valid claim in court.

Statutes of limitations can be as long as ten years for many contract disputes.  Even longer periods exist for certain crimes such as under-age rape, murder, and other major felonies.  Statutes of limitations can be as short as one year.  For example, in Louisiana, there is a one year statute of limitation for most every case.  Employment cases can be even shorter.  Victims can have as short as 180 days to file a claim.

A wrongful death claim in Missouri must be brought within three years.  R.S.Mo. § 537.100.  There are many ambiguities in the law.  Both a wrongful death statute and courts order that the statute be “liberally construed.”  Section 1.010; O’Grady, 654 S.W.2d at 904.  This means that whenever there is an ambiguity and the laws is not precisely on point, deference should be given to the victims.

 How Can A Statute Of Limitations Be Longer Than The Deadline Ordered By The Law?

What Is Tolling?

A statute of limitation can be “tolled.”  This is a legal term that means that the time limit deadline is paused.  This “tolling” occurs, for example, when one party is under some sort of legal disability.  For example, a personal injury victim may have a traumatic brain injury.  They may lack the legal capacity to act, or be a child or someone with a mental illness.

Some statutes of limitations can be tolled for military members serving abroad.  Tolling includes situations like the following:

  • Plaintiff is a minor (child) the statute does not begin to run until he reaches the age of maturity.
  • Plaintiff has been declared insane
  • The victim is in prison for a felony
  • Defendant has fled and cannot be found in a criminal case
  • Defendant is currently undergoing a bankruptcy proceeding

What Is Accrue?  The “Discovery of Harm” Rule

“Accruing” is different than tolling.  The wrongful death statute does not define what it means to “accrue.”  Therefore, it is left to the courts to define it.

The courts define accrual as, in essence, when the statute of limitations clock begins to run.  If a lawsuit has never accrued, there is nothing to toll, because an event or a circumstance cannot interrupt an event which is never started.  Bowlin v. St. Luke’s Health System Inc., W.D. 75364 (Mo. App. W.D. 2013).

The Test to Accrue

A statute of limitations begins to accrue when one of the wrongful death class members either knows or can reasonable discover they have a wrongful death claim.  See State Ex. rel. Beisly v. Perigo, 469 S.W.3d 434, 437-38 (Mo. 2015).

In the words of United States Supreme Court Justice Stevens, a wrongful death claim accrues when a “diligent plaintiff has knowledge of facts sufficient to put him on notice of an invasion of his legal rights.”  U.S. v. Kubrick, 444 US 111, 126 (1979).  In other words, a lawsuit “accrues when the right to sue arises.”  Hunter v. Hunter, 237 S.W.2d 100,103 (1951).

How Defendants Conceal Their Wrongful Conduct, Causing Wrongful Death Statutes Of Limitation to Accrue

It is common for corporations and people to hide their wrongful acts.  It is expected that employees, agents, and loved ones sometimes cover up the ill deeds of those whom they care for.  Employees jump to the aid of employers to impress.  Sometimes people cover-up merely out of spite.

Rather than curse such acts, we should reveal how they typically arise.  This is as follows:

  • Threatening or coercing employees to conceal information concerning their error
  • Failing to request an autopsy of a deceased despite the suspicious nature of their death
  • Telling family members the death was “natural”
  • Failing to convene a committee to review the medical death, or code blue, or to determine how to prevent future deaths from similar circumstances
  • Failing to inform others of the wrongful conduct that caused the death
  • Failing to inform the medical community, such as licensing boards about the wrongful conduct
  • Failing to invest the perpetrator who killed
  • Impeding a police investigation
  • Failing to preserve evidence
  • Hiding evidence
  • Destroying evidence

See Joan M. Lockwood, Wrongful death causes of action timely filed though death occurs more than three years prior to suit, The Missouri Trial Attorney 16 (Winter 2013).

Actions and omissions such as these are critical evidence to convince a court to accrue a statute of limitations when the wrongful death time period has elapsed.

Is Fraudulent Concealment Needed to Delay the Start of a Wrongful Death Clock?

Fraudulent concealment is not needed.  The law does not even require a “bad guy.” All that is needed to accrue a wrongful death statute of limitation is persuasive evidence that the class members were prevented from knowing or reasonably discovering that they had a wrongful death claim.  See Jepson v. Stubbs, 555 S.W.2d 307, 311 (Mo. banc 1977); Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957); Beisly, 469 S.W.3d at 438.

Expect for the defendant to argue that the statute of limitations started at the time of death.  Use the facts of the particular circumstance you are in.  Try to fit them into the categories I have listed above.  Therefore, argue the time of accrual and any tolling facts that may help you.

How To Survive an Allegation that Your Wrongful Death Claim Is Too Late

The following arguments should be proposed to the court and supported by evidence.

  1. Argue that failing to allow the claim goes against the three purposes of the wrongful death statute (see above)
  2. Accrue – display how the wrongful death claimants did not know of facts supporting the claim until a particular date
  3. Accrue – demonstrate how the evidence revealing the claim was not reasonably discoverable until a particular date
  4. Accrue – argue that actions taken by the wrongful death claimants would have revealed the wrongful death claim, but for defendants concealment.
  5. Accrue – list out and explain the actions the wrongful death claimants would have taken, if the defendants would not have acted to conceal the deadly wrongful conduct.

The Need for a Wrongful Death Law Firm

As one can see, wrongful death actions vary considerably from ordinary personal injury automobile accidents.  They involve different laws.  They involve different fact searches.

There are ways in which a simple mistake can cause entire claim to be extinct.  I encourage you; if you have a wrongful death claim, seek the services of wrongful death attorney so these problems can be avoided.  The idea after all is to seek compensation for victims, and detour future deaths.

Author:

Matt Hamilton of Hamilton & Associates, Lawyers

  • Juris Doctor
  • Trial Attorney