Blog Posts
05.13.20 | In an update to a prior post, Senate Bill 591 (which seeks to impose stricter standards for the application of punitive damages) cleared The Missouri House on May 12, 2020 in a 98-51 vote. The Bill, now on its way to Governor Parson for his signature, will likely go into effect on August 28, 2020. Governor Parson is expected to sign the measure without veto.
05.07.20 | As the U.S. deals with COVID-19, there are already signs of concern for our healthcare providers being attacked in the future. In part four of our series of blog articles delving into potential dangers for healthcare providers related to the COVID-19 global pandemic, we consider causation issues for healthcare associated COVID-19 infections.
05.05.20 | As the U.S. deals with COVID-19, there are already signs of concern for our healthcare providers being attacked in the future. In part three of our series of blog articles delving into potential dangers for healthcare providers related to the COVID-19 global pandemic, we consider the American Medical Association's push for states to pursue liability protections for healthcare professionals.
05.01.20 | As the U.S. deals with COVID-19, there are already signs of concern for our healthcare providers being attacked in the future. In part two of our series of blog articles delving into potential dangers for healthcare providers related to the COVID-19 global pandemic, we consider the "standard of care" for healthcare providers.
04.29.20 | As the United States makes its way into the third month of dealing with COVID-19, there are already signs of concern for our healthcare providers being attacked in the future. In part one of a series of blog articles, we delve into potential dangers for healthcare providers and offer observations about possible defense strategies.
04.23.20 | Long-term care facilities face many challenges, and the COVID-19 pandemic appears to be yet another significant challenge for these facilities. What can long-term care facilities do to prepare for potential litigation or avoid it altogether?
04.22.20 | The U.S. Department of Health and Human Services ("HHS") has announced a plan of enforcement discretion regarding telehealth communications and testing sites during the COVID-19 Nationwide Public Health Emergency. As a result, HHS will not impose penalties for covered healthcare providers' noncompliance with HIPAA in connection with the good faith provision of telehealth during the emergency.
04.13.20 | In Revis v. Bassman (ED107663), Missouri's Eastern District Court of Appeals recently reversed and remanded the trial court's ruling barring Plaintiff from cross examining the defense expert on his tort reform activity.
03.02.20 | The data is out on Kansas City area jury verdicts for calendar year 2019, and it contains mostly good news for defendants. While the total number of jury verdicts was up slightly from 2018, the percentage of those verdicts in plaintiffs' favor was down, with nearly 60% of claims that went to a jury ending in a defense verdict. 2019 also saw a drop of almost 30% in the number of verdicts over $1 million. Although the data shows a rise in the average verdict amount, that increase is entirely attributable to a single mega verdict of more than $100 million; controlling for that outlier, the size of the average award was also down significantly.
02.25.20 | In a case of first impression, the Supreme Court of Missouri, in Thomas E. Tharp, et al. v. St. Luke's Surgicenter-Lee's Summit, LLC, overturned a $2.3M verdict and granted a new trial after the unusual step of holding a rehearing and vacating an earlier opinion.
02.12.20 | City of St. Louis has seen a steady decline on the judicial hellhole rankings with modest reforms but the Illinois counties of Madison and St. Clair remain hotspots for asbestos litigation and "no-injury" BIPA lawsuits according to the 2019/2020 American Tort Reform Foundation Judicial Hellholes Report.
02.12.20 | City of St. Louis has seen a steady decline on the judicial hellhole rankings with modest reforms but the Illinois counties of Madison and St. Clair remain hotspots for asbestos litigation and "no-injury" BIPA lawsuits according to the 2019/2020 American Tort Reform Foundation Judicial Hellholes Report.
02.06.20 | The new rule governing special interrogatories gives the trial court power to prevent confusing special interrogatories, as the one in Doe v. Alexian Brothers Behavioral Health Hosp., but it also rips away an important tool for the defense. 735 ILCS 5/2-1108.
12.26.19 | Illinois Appellate Court rejected plaintiff's claim that expert testimony is required only to establish applicable standard of care upholding directed verdict in plaintiff's medical malpractice informed consent claim.
11.26.19 | The Illinois Court of Appeals recently weighed in on the distinction between neurological injury and psychological damage as applied to the Illinois Mental Health and Developmental Disabilities Confidentiality Act in Sparger v. Yamini.
10.30.19 | In Eoff v. McDonald, the Supreme Court of Missouri upheld a St. Louis County circuit judge's refusal to allow plaintiffs' counsel additional time during jury selection to ask the "insurance question", after counsel forgot to do so earlier when it was his turn to question potential jurors. The decision hinged on...
07.23.19 | Plaintiff Gerald Ward originally sued Decatur Memorial Hospital in 2009 alleging medical malpractice in the treatment of his brother who developed a post-surgery bed sore that became infected. Plaintiff alleged that...
07.16.19 | SECOND UPDATE: Missouri Governor Mike Parson signs Senate Bill 7, which amends venue and joinder laws, to prevent out of state plaintiffs from litigating their cases in an inappropriate venue.
06.17.19 | A seismic shift in Kansas personal injury litigation may be on the horizon, as the Kansas Supreme Court rules that the state's cap on noneconomic damages violates the constitutional right to a jury trial.
06.12.19 | In Thomas E. Tharp, et al. v. St. Luke's Surgicenter – Lee's Summit, LLC, the Supreme Court of Missouri overturned a $2.3 million jury verdict in favor of a patient and his wife against a hospital, because there was no proof the hospital negligently credentialed a surgeon.
05.20.19 | UPDATE: House Passes Senate Bill 7, in which the Missouri legislature seeks to amend venue and joinder laws, to prevent out of state plaintiffs from litigating their cases in an inappropriate venue.
05.06.19 | The Illinois First District Appellate Court recently affirmed a Cook County Circuit Court's dismissal of a medical negligence action as time-barred by both the statute of limitations and the statute of repose. In reaching its decision, the appellate court relied upon long-standing Illinois case law as to when a medical negligence action accrues in a wrongful death action.
04.12.19 | The Illinois Appellate Court, First District, held that a party may timely withdraw a previously disclosed testifying expert and redesignate said expert as a Rule 201(b)(3) consultant entitled to the consultant's privilege against disclosure absent exceptional circumstances.
03.18.19 | In Senate Bill 7, the Missouri legislature seeks to amend venue and joinder laws, to prevent out of state plaintiffs from litigating their cases in an inappropriate venue.
02.21.19 | In State ex rel. Mylan Bertek Pharmaceuticals, Inc. v. Vincent, the Missouri Court of Appeals, Eastern District, held that, in a case alleging wrongful death, medical malpractice, and pharmaceutical liability, venue was proper only in the county where the decedent first ingested opioid pain medication, rather than the county where a defendant prescribed it.
01.29.19 | Court effectively negates statutory amendment intended to limit trial evidence to the actual cost of medical care.
12.26.18 | Defense attorneys beware. The 2018-2019 American Tort Reform Foundation's (ATRF) Judicial Hellholes Report is out, and the City of St. Louis landed fourth on this list because of its massive verdicts, forum shopping, and legislative failures.
10.30.18 | The Missouri Supreme Court has firmly upheld the right of a party to present multiple expert witnesses during the trial of a medical malpractice case. Shallow v. Follwell, 554 S.W.3d 878 (Mo. banc 2018). The Supreme Court disagreed with the Court of Appeals' decision in the case, and instead...
08.06.18 | In Ferder v. Scott, the Missouri Court of Appeals, Eastern District (opinion authored by Judge Robert G. Dowd, Jr.). reversed a trial court's dismissal of a medical malpractice lawsuit for failure to comply with the affidavit of merit requirement in s. 538.225, RSMo.
06.22.18 | When will plaintiffs learn? In Hink v. Helfrich, the Missouri Supreme Court has recently added yet another to a long line of Missouri decisions upholding constitutional validity of the health care affidavit requirement for medical negligence actions, and strictly construing the mandatory statutory language.
11.03.17 | A Missouri trial court abused its discretion by permitting four expert witnesses to echo the defense's theory of alternative causation without requiring that each expert witness' opinions be limited to his area of expertise. Courts must adhere to the principles regarding legally relevant evidence, and preclude cumulative evidence in doing so.
08.24.17 | R.S.Mo. § 538.225 requires a medical malpractice plaintiff to file an affidavit stating that he or she has obtained the opinion of a legally qualified health care provider that defendant’s negligence caused the alleged damages. A plaintiff who has furnished a deficient affidavit may cure the deficiency and avoid dismissal through the testimony of a legally qualified health care provider at the court’s probable cause hearing.
05.30.17 | The United States Supreme Court ruled on May 22, 2017, that the Hague Convention, on the service of judicial documents abroad, permits service by mail if the receiving country has not objected to service by mail and service by mail is authorized under otherwise-applicable law.
04.27.17 | The Florida Supreme Court recently ruled that the attorney-client privilege protects a party from being required to disclose that her attorney referred her to treating doctors.
03.31.17 | Earlier this week, Governor Eric Greitens signed Missouri HB 153 into law. HB 153, which supplants Missouri's existing expert witness standard with that set forth in Federal Rules of Evidence 702, 703, 704 and 705, effectively submits expert testimony in most civil and criminal case to the analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
03.27.17 | Within a two-week period, two federal judges issued strongly worded orders denouncing the common practice of asserting boilerplate objections to written discovery.
11.02.16 | A Missouri plaintiff did not irrevocably waive the protections of the work product doctrine simply by designating an expert witness and then withdrawing the designation without disclosing the expert’s analysis or conclusions.
06.08.16 | In a revised opinion issued on May 24, 2016, the Missouri Supreme Court continues to uphold the constitutionality of the $350k non-economic damages cap, pursuant to Mo.Rev.Stat. §538.210, in wrongful death cases, and to focus on the distinction between statutory and common law claims; but expands its analysis of the equal protection challenge raised by plaintiff
05.06.16 | The Missouri Supreme Court, in a split decision, upholds the constitutionality of the $350k non-economic damages cap, pursuant to Mo.Rev.Stat. §538.210 in wrongful death case, recognizing the distinction between statutory and common law claims.
04.19.16 | The Supreme Court of Missouri, en banc, vacated a trial court's grant of summary judgment in favor of a physician and remanded the case, because the allegations in the petition stated a cause of action for medical negligence that would have been actionable under sec. 537.020, RSMo (Missouri's "survivorship" statute) if brought by the patient's personal representative.
03.28.16 | K.S.A. § 60-19a02, establishing caps on recovery for noneconomic damages in personal injury actions, is constitutional as applied to personal injuries resulting from collisions between motor carriers and motor vehicles.
01.04.16 | While a Kansas court may grant relief from a final judgment based on excusable neglect, it is an abuse of discretion to grant that relief when the party seeking that relief has failed either to explain what facts constituted excusable neglect or to provide any evidence to support that claim.
11.18.15 | In Lang v. Goldsworthy, a case decided by the Missouri Supreme Court on October 13, 2015, Plaintiffs, consisting of family members who filed a wrongful death action alleging negligent chiropractic services of a health care provider that allegedly caused the death of their relative, unsuccessfully attempted to challenge the constitutionality of Mo. Rev. Stat. § 538.225, generally known as the "health affidavit" statute.
10.13.15 | The Supreme Court of Missouri, en banc, affirmed a trial court's decision to dismiss a wrongful death action premised on medical malpractice because the plaintiffs failed to file the health care affidavit required by § 538.225, RSMo.
05.26.15 | The Missouri Court of Appeals, Western District, affirmed a trial court decision dismissing a plaintiff's medical negligence action, without prejudice, for failure to comply with §538.225, RSMo, the statute requiring a medical malpractice plaintiff to file an affidavit stating plaintiff has obtained a written opinion from a qualified health care provider in support of the claim's merit.
05.12.15 | On March 27, 2015, we informed our readers of the possibility that caps in medical malpractice damages might return to Missouri. As of May 7, 2015, caps are back in play. Recently, the House of Representatives passed the Senate damage cap bill by 125 to 27 vote, and sent it to Governor Jay Nixon for signature.
04.28.15 | Missouri, en banc, affirmed a trial court's decision to dismiss a plaintiff's foreign-object medical malpractice claim against a health care provider for leaving foreign objects in the patient's abdomen during surgery almost 14 years earlier.
03.27.15 | In 2012, the Missouri Supreme Court ruled in the case of Watts v. Cox Medical Center that the previously enacted tort reform statutory cap on medical malpractice damages was unconstitutional as it violated a plaintiff's right to trial by jury. From time to time, bills have been brought before the State bodies in an attempt to try and reinstate caps; however, no effort has been successful or serious until now.
01.20.15 | Kansas has joined a short, but growing, list of states introducing legislation purporting to give terminally ill patients the option to try drug treatments not yet approved by the FDA, but which have passed Phase One FDA testing. However, the legislation does not incentivize any manufacturer to provide such drugs and in fact potentially exposes a manufacturer who does provide access to additional risk of lawsuits.
07.11.14 | K.S.A. 60-19a02 has been amended, increasing Kansas's long-standing cap on non-economic damages (pain and suffering) recoverable in personal injury. K.S.A. 60-456(b) has also been amended to mirror the requirements for the admissibility of expert testimony set forth in Fed. R. Evid. 702.
07.07.14 | After sitting on the sidelines for years the American College of Obstetrics and Gynecology has released a comprehensive medical review that deals a fatal blow to claims that permanent injuries are definitive evidence of error by the delivering physician.
06.23.14 | Experts are not required to rule out all possible causes when performing the differential etiology analysis if the experts have properly ruled in the alleged cause.
06.16.14 | Medical malpractice plaintiffs must comply with the Health Care Affidavit statute (Mo.Rev.Stat. 538.225), or face dismissal.
04.29.14 | A Kansas plaintiff may amend their pleadings to assert punitive damages up until the day of the pretrial conference.
04.21.14 | Based on its adoption of a statutory scheme of comparative negligence, Kansas has abolished common law assumption of the risk as a bar to recovery. Simmons v. Porter, 298 Kan. 299, 312 P3d 345, 355 (Kan. 2013).
03.20.14 | The plaintiff has the burden of proving standing, which is a jurisdictional issue that can be raised at any time.
02.25.14 | In Kansas, the parties bind themselves to an enforceable settlement, even though the parties contemplate subsequent execution of a formal instrument. However, when the parties specifically condition a contract on it being reduced to writing and signed, there is no enforceable contract until such act is accomplished.
10.29.12 | In October of 2012, the Kansas Supreme Court resolved four constitutional questions and upheld the noneconomic damages cap of $250,000 in personal injury actions contained in K.S.A. 60-19a02. In Miller v. Johnson, 289 P.3d 1098 (Kan. 2012), a patient brought a medical malpractice action against a physician who mistakenly removed patient's left ovary during a surgery intended to take the right ovary. . .
10.04.12 | Supreme Court of Missouri issued an opinion in Deborah Watts as Next Friend for Naython Kayne Watts v. Lester E. Cox Medical Centers d/b/a/ Family Care Center, Lester E. Cox Medical Centers, Melissa R. Hermann, M.D., Matthew P. Green, D.O., and William S. Kelly, M.D. holding that RSMo 538.210, which caps non-economic damages, is unconstitutional, as it violates the right to trial by jury. . .
01.05.12 | The Missouri Supreme Court in a 4 to 3 decision held that section 538.210 RSMo 2000 is unconstitutional to the extent that it infringes on the jury's constitutionally protected purpose of determining the amount of damages sustained by an injured party. The Court further held...
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