Blog Archives

  • Brostron Wins Top Defense Verdict for Third Year in a Row

    Kenneth C. Brostron and Mark R. Feldhaus have won Top Defense Verdict for 2017 by Missouri Lawyers Weekly. The award honors Missouri-licensed attorneys who scored the biggest civil victories in Missouri courts, based on Missouri Lawyers Weekly’s Verdicts & Settlements database. These awards honor both trial victories and settlements.

    Brostron and Feldhaus successfully defended three labor and delivery nurses in the care of a mother who gave birth to a son who suffered brain damage. The plaintiff asked for more than $20 million and the jury found for the defense 11 to 1. The complete announcement and ranking will appear in the February 5th issue of Missouri Lawyers Weekly.  


  • Brostron and Feldhaus Successfully Defend Missouri Hospital

    Kenneth C. Brostron and Mark R. Feldhaus successfully defended one of their hospital clients in a medical negligence case. The trial involved a brain damaged child alleged to have suffered the injury during labor which left the child cognitively impaired. The hospital claimed the injury was due to an intrauterine infection. The plaintiff claimed the child, now almost 9 years old, would need to be institutionalized and could not work for the rest of his life. The trial lasted nearly four weeks and the plaintiff asked the jury to award over $20 million in damages. The jury deliberated for only two hours and returned a defense verdict 11-1.

  • Brostron and Wolf Recognized For Securing One of the Largest Reported Defense Wins in Missouri for 2016

    Congratulations to Kenneth C. Brostron and Wendy J. Wolf for being recognized as one of Missouri Lawyers Weekly’s 2017 Top Verdicts & Settlements Award Honorees. Missouri Lawyers Weekly announced recently that Brostron and Wolf of Lashly and Baer will be recognized for securing one of the largest reported defense wins of 2016 in the state of Missouri.

    Missouri Lawyers Weekly’s 2017 Missouri Lawyers Awards on January 27 will honor attorneys for their achievments in 2016. The winners received the largest verdicts, judgments and settlements reported by the news staff to their Verdicts & Settlements database.

    The official ranking will be announced during the awards event at the Hilton St. Louis at the Ballpark and published in the Top V&S edition of Missouri Lawyers Weekly on February 6th. To read the full announcement click here.

  • Kenneth C. Brostron and Wendy J. Wolf Successfully Defended Nephrologist

    Kenneth C. Brostron and Wendy J. Wolf successfully defended a Nephrologist in a seven day jury trial in St. Louis County. The plaintiffs sought over eleven million $11,000,000 for the death of their eighteen year old daughter alleging that the care resulted in hypoxemia, brain injury and ultimately death.

  • Attorneys’ Fees Counted as Damages For Purposes of Punitive Damages Cap

    The Missouri Supreme Court again analyzed portions of the State of Missouri’s 2005 Tort Reform Bill in a recent employment discrimination decision.  In that decision, the Missouri Supreme Court found that attorneys’ fees should be included in the determination of the “net amount of judgment” that is used to calculate the maximum amount of punitive damages pursuant to Section 510.265, RSMo. 

    Section 510.265 limits the amount of punitive damages in most civil cases to the greater of $500,000 or 5 times the net amount of the judgment awarded to the plaintiff against the defendant.  The Missouri Supreme Court ruled that in determining the net amount of the judgment against the defendant, attorneys’ fees should be included.  In other words, actual damages plus any awarded attorneys fees are added together and any appropriate reductions then applied.  This amount is then multiplied by 5 in order to determine the total amount of punitive damages awardable. 

    While punitive damages may not play a significant role in the majority of cases, including attorneys’ fees in the net amount of judgment certainly has the potential to significantly raise the floor on the amount of punitive damages awardable in such cases. 

     Hervey v. Missouri Department of Corrections

  • Missouri Supreme Court Strikes Down Cap on Non-Economic Damages in Medical Malpractice Cases

    On July 31, 2012, the Missouri Supreme Court issued its opinion in Watts v. Lester E. Cox Medical Center.  In that case, Deborah Watts filed a medical malpractice action alleging that her son was born with disabling brain injuries because of Cox Medical Center and its associated physician’s medical malpractice.  The jury returned a verdict in favor of Watts and awarded $1.45 million in non-economic damages and $3.371 million in future medical damages.  The Court entered a judgment reducing Watts’ non-economic damages to $350,000 as required by Section 538.210, RSMo.  The judgment also established a periodic payment schedule pursuant to Section 538.220, RSMo.  This periodic payment schedule required immediate payment of half of all net and future medical damages with the other half paid in equal, annual installments over the next 50 years at an interest rate of .26%. 

    All parties appealed.  Watts asserted the cap on non-economic damages provided by Section 538.210, RSMo violated the right to trial by jury and several other provisions of the Missouri Constitution.  She also asserted that the Section 538.220 periodic payment schedule established by the trial court was arbitrary and unreasonable in that it did not assure full compensation due to the low interest rate and the 50 year payment schedule.  Cox cross-appealed asserting that the trial court erred in its immediate award of future medical damages.  Cox asserted that Section 538.220 prohibited a lump sum payment of a portion of future medical damages and, instead, requires that all future medical damages be paid pursuant to a periodic payment schedule regardless of when the need for medical damage payments will arise. 

    The Missouri Supreme Court ruled in Watts’ favor and struck down the cap on non-economic damages in medical malpractice cases as well as in Watts’ favor on the issue of the arbitrariness and unreasonableness of the schedule of periodic payments for future medical damages.  In striking down the Section 538.210 cap on non-economic damages, the Missouri Supreme Court relied on Article One, Section 22(a) of the Missouri State Constitution.  That Section provides, in relevant part, “The right of trial by jury as heretofore enjoyed shall remained in violate….”  Thus, Article One, Section 22(a) of the Missouri Constitution required the Court to analyze two propositions to determine if the non-economic damage cap violated the state constitutional right to a trial by jury.  The first portion of that analysis is whether Watts’ medical negligence action and claim for non-economic damages was included within the “right of trial by jury as heretofore enjoyed.”  The Missouri Supreme Court found that medical malpractice actions were recognized at common law prior to the adoption of the Missouri State Constitution in 1820 and, therefore, fell into the category of civil cases which enjoyed a right to jury trial prior to the adoption of the Missouri Constitution.  The Supreme Court then analyzed whether the damage caps allowed the right to jury trial to remain inviolate.  The Court specifically found that a jury’s primary function is fact finding, which includes a determination of plaintiff’s damages.  Therefore, like other types of damages, the amount of non-economic damages is a fact that must be determined by the jury and is subject to the protections of the Missouri Constitution’s right to trial by jury.  The Court further stated that an injured party’s right to a trial by jury does not remain inviolate “when an injured party is deprived of the jury’s constitutionally assigned role of determining damages according to the particular facts of the case.”  Thus, the Missouri Supreme Court held that the statute providing for a cap on non-economic damages in medical malpractice cases necessarily and unavoidable violated the right to trial by jury.  In its ruling, the Missouri Supreme Court overruled the prior Missouri Supreme Court decision of Adams by and Through Adams v. Children’s Mercy Hospital, 832 S.W.2d 898 (Mo banc 1992), which had upheld a prior statutory cap on non-economic damages in medical malpractice cases. 

    With regard to both parties appeal of the periodic payment schedule set forth by the trial court pursuant to Section 538.220, RSMo, the Missouri Supreme Court denied Cox’ appeal and held that the statute does not require all future medical payments be paid according to the payment schedule.  In other words, the trial court had the discretion to award an initial lump sum payment and schedule periodic payments for the remainder of any future medical damages.  With regard to Watts’ appeal, the Missouri Supreme Court found that the trial court’s use of a .26% interest rate virtually guaranteed that inflation in healthcare costs would result in the child having insufficient funds to pay his future medical costs.  Thus, the periodic payment schedule provided none of the financial security intended by the statute.  Because the jury rendered a verdict of a present value amount of plaintiff’s future damages, the trial court’s use of an inconsistent future damages interest rate guaranteed the jury’s damages award would not actually cover the future medical costs and, therefore, took from the plaintiff the full value of the jury’s award.  Therefore, the Missouri Supreme Court reversed the case and remanded it to the trial court to enter a new periodic payment schedule consistent with the goal of reducing medical malpractice costs and also ensuring that the plaintiff would receive the benefit of the jury’s award for future medical care. 

    The impact of the Watts decision is likely to be felt for a long period of time.  The Missouri Supreme Court not only struck down the latest incarnation of the Missouri cap on non-economic damages, but, essentially, stated that any damages awarded on claims which existed at common law prior to the adoption of the Missouri Constitution cannot be capped by the legislature.  Therefore, the result of the Watts decision is not that the state of the law in Missouri reverts to prior statutory caps, but, instead, is that no cap exists for non-economic damages for medical malpractice claims. 

    Watts v. Lester E. Cox Medical Center

  • Southern District Clarifies Foundation For Admission of Medical Bills

    The qualifications of the witness and that witness’s necessary testimony for the admission of medical bills into evidence is an issue frequently addressed by litigants and their attorneys in everything from collection matters to tort claims.  The Missouri Southern District Court of Appeals recently issued an opinion providing some guidance on the qualifications of a witness to lay the foundation for the admission of those medical bills as well as the type of testimony necessary to sustain the medical bills’ admission.

    Saint Francis Medical Center in Cape Girardeau, Missouri, filed a collection action against the Reeves family seeking to collect unpaid medical bills relating to the birth of the Reeves’ child.  Only one witness testified at trial, the hospital’s business manager, Roberta Matlock.  Ms. Matlock offered the following testimony:

    • She was employed in the hospital’s business office for 28 years and handled credit, collections, and billing matters;
    • She was familiar with the Reeves’ account;
    • Mrs. Reeves and her child were patients at the hospital;
    • The hospital billed defendants the “ordinary and customary charges” for services and supplies furnished by the hospital;
    • The hospital charges were “fair and reasonable for [its] area” based on her experience working with reimbursements paid by Medicare, private insurance companies, and from studies prepared by independent consultants hired by the hospital to review how its charges align with charges and post by other Missouri hospitals; and
    • The hospital’s charges fall “in the middle end” of that range.

    After this testimony, the hospital offered into evidence the bills for the services and goods it provided to the Reeves.  The Reeves’ attorney made an objection that the witness was not qualified to testify to the reasonableness and necessity of the charges because the witness had not identified herself as a licensed medical professional and that the only evidence was that she works with Medicare and Medicaid and insurance companies and, for the most part, they pay the bills that the hospital sends them.  The court sustained the defendant’s objection and excluded the medical bills from evidence.

    On appeal, the Southern District Court of Appeals reversed the decision. The Southern District found Ms. Matlock qualified to testify about the rates and charges and she laid the necessary foundation for admitting the bills as business records.  The Southern District did note that questions concerning Ms. Matlock’s credibility would be relevant only to the weight the trial court might choose to give the exhibits once they were admitted into evidence.  The Southern District then ordered the trial court to reverse its judgment in favor of the defendants, receive the medical bills into evidence and give them whatever weight the trial court deems appropriate before rendering judgment. 

    This decision clarifies the fact that it is unnecessary to call a licensed medical professional to lay sufficient foundation for the admission of medical bills.  A member of a healthcare provider’s billing staff, assuming they have similar knowledge and qualifications as Ms. Matlock, can provide the necessary foundation for the admission of such exhibits thereby rendering depositions of actual treating healthcare providers unnecessary to obtain this evidence.

  • Doctors Admit to Overtreating Patients

    According to a recent survey, more than 40 percent of 627 primary care doctors said they “overtreat” their own patients, often ordering unnecessary tests or prescribing unneeded treatments. The reason for overtreatment? Physicians are worried about medical negligence lawsuits filed by patients who believe they were improperly treated. Specifically, if the physician does not order these unnecessary tests and a patient is diagnosed later with an injury or illness that was missed, the patient often sues with accusations such as “failure to diagnose” or “failure to treat.” 

    Last year patients filed 9,894 medical malpractice claims nationwide, which resulted in payouts of more than $3 billion. In Missouri alone, patients filed 155 claims, with payments of over $50 million.

    This fear of malpractice litigation has resulted in increased costs for emergency care and has put stress on other aspects of health care. The San Francisco Chronicle recently reported that emergency room physicians think liability reform is the key to cost savings in health care.  This action would reduce the pressure on physicians to perform unnecessary tests or admit patients to the hospital when they could be monitored in the office.

    At Lashly & Baer, we often see cases where the plaintiff alleges that a doctor’s failure to order a particular test or treatment resulted in his or her injury.  For example, we represented a defendant in a medical negligence lawsuit involving a patient who was treated for what was believed to be a common kidney infection, but turned out to be a rare spinal infection.  The patient’s symptoms were consistent with a kidney infection and the doctor followed the appropriate standard of care for the diagnosis.  He did not order additional more invasive studies since the symptoms were consistent with the diagnosis.  A later MRI determined that the patient had a spinal infection.  In the lawsuit the plaintiff argued that an earlier MRI would have diagnosed the condition, which would have resulted in less pain and suffering for the patient.

    Although the initial diagnosis turned out to be incorrect, our defense was to show that the proper standard of care was used when treating the patient based on the patient’s symptoms. The doctor provided the best care for the patient based upon these symptoms and determined that proceeding with additional tests would potentially endanger the patient since more invasive tests could have further injured the patient.  Ultimately our client was dismissed.

    Unfortunately, lawsuits are part of a physician’s practice. We advise our clients that doctors and hospitals should always do what they believe is best for the patient, follow the appropriate standard of care, and not focus on possible lawsuits. Patients should ask their doctor questions if they are concerned that more testing or treatment should be done for their complaints.  It’s also critical that doctors and hospital staff document these conversations, especially writing in the record why further tests were not ordered and what was told to the patient.  Proper documentation is critical for protection in negligence cases and will tremendously improve the odds of prevailing in a lawsuit.

  • Computing Damages is Unclear Under Missouri Tort Reform Act

    In 2005, Missouri passed a Tort Reform Act, which, among other things, affected the way a plaintiff can present medical bills to a jury. In the past, a plaintiff could simply show the total amount charged by the provider for the medical services. Under the Act, the legislature created a rebuttable presumption that when determining damages, the value of the healthcare is the amount paid for the medical services, not what was initially charged. Most often, Medicare and medical insurance companies reduce the amount of the medical bills, which can affect the value of a case.  

    The Act’s language has caused much confusion within the trial bar. The Missouri Supreme Court in Deck v. Teasley, SC90628 (2010), recently held that if a plaintiff can present substantial evidence that the amount billed is a better indicator of the value of the medical services, then the jury should be presented with not only the amount paid but the amount charged.

    Although section 490.715 of the Tort Reform Act was intended to limit medical damages to amounts paid to providers, Deck v. Teasley makes it considerably easier for plaintiffs to recover the amount billed for their treatment. The state legislature now has some work to do if they want to restore the law to its original intent.

  • Risks on the Job Can Put Nurses in Jeopardy

    Nursing can be a thankless job. It’s often stressful, can be physically and mentally demanding, and requires a certain amount of fortitude when helping patients or family members in times of emotional and physical pain.

    I’m a nurse myself, although I no longer practice. I still hold my nursing license but work as an attorney in the area of medical malpractice and nursing licensure. Perhaps I’m biased, but nurses are among the most dedicated, hard-working groups of people I know. But nurses, like the rest of us, are human, and at some point will make errors on the job. They can be held liable, just like doctors and other health professionals, for negligence. A nurse’s license can be investigated if a patient or family has made a complaint about them or if they’ve been terminated from their job. The Missouri State Board of Nursing has the authority to impose discipline in the form of censure, probation, license suspension, or revoking the license.

    It’s important that nurses protect themselves from the repercussions of mistakes made on the job. One recommendation I can make to nurses who are facing disciplinary procedures by the state nursing board is to seek legal advice as soon as possible. An attorney can help the nurse through an investigation and/or negotiate an appropriate “punishment,” whereas a nurse on his or her own might end up with a disciplinary action that is overly harsh for the circumstances.

    It’s better to retain a lawyer at the beginning of an investigation than the end. Nurses should seek advice before making a statement or submitting a written response to the board. Nurses should try to develop a relationship with a qualified lawyer they could call in the event that a problem comes up. Scrambling at the last minute to find someone is not the best approach.

    I encourage nurses to find an attorney who is familiar with the nursing board and its standards. Ask for a meeting with that person so you can hear about their background and experience. If you’re comfortable with the attorney, you can keep his or her contact information for future reference.

    Hiring a lawyer to defend oneself in a disciplinary action can be an expensive proposition. Depending on their personal circumstances, nurses may consider obtaining insurance to cover legal costs. Whether or not they have insurance, nurses need to know that in the long run, consulting an attorney is a smart move that can help protect their nursing career.

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