Missouri Injury Law Blog

St. Louis Woman Sues After Doctor Operates On Wrong Side Of Her Brain

Wed, 22 May 2013 13:55:49 -0600

Many people have likely run across stories about operations gone wrong, stories about sponges left inside incisions or patients that had the wrong leg operated on. A recent lawsuit filed by a woman from St. Ann, Missouri puts all those in perspective. The recently filed medical malpractice suit alleges that her physician operated on the wrong side of her brain.

The suit was filed against the St. Clare Health Center and her doctor, identified as Dr. Armon Levy. The woman, Regina Turner, was scheduled to undergo a "left-side craniotomy bypass" to help prevent future strokes, but instead received a "right-side craniotomy surgical procedure." Once the surgeons realized their mistake they performed the correct procedure six days later, tragically, too late to avoid damage.

Her family has now filed suit on her behalf, claiming that the hospital and her neurosurgeon were negligent and careless which led to the terrible mistake. Prior to the surgery the woman was able to walk, talk and care for herself. The woman is now unable to speak and requires around the clock care just to meet her basic needs.

An expert interviewed about the case said that while it is understandable that many people would want to blame the doctor, the fact is such catastrophic mistakes like wrong-site surgeries are actually signs of a systemic failure and not an individual's error. A lack of proper safety protocols in the hospital itself could be to blame or a dearth of pre-surgery checklists for doctors to ensure that similar mistakes never happen. According to the lawsuit, members of the operating team setup the operating room incorrectly and then stood by and watched as the doctor operated on the wrong side of the patient's brain, never interjecting or double-checking.

Following along with this theme of surgical errors, a recent study out of Harvard Medical School came across some disturbing evidence which showed that surgical mistakes can actually help boost a hospital's financial bottom line. Though it's terrible to imagine, the researchers found that complications that arise from surgeries, such as infections or strokes, result in significantly more money for the hospital than procedures that go smoothly.

Using records from a Texas hospital, the researchers discovered that procedures that ended in complications earned the hospital just under $15,000 while surgeries that went according to plan netted the hospital $7,500. That means that surgical complications are almost twice as lucrative as those procedures that go perfectly.

The study's authors have said that they conducted the research to try and understand why it appears to be so hard to reduce medical complications which claim tens of thousands of lives every year. The authors said they were always confused about why it seemed to take so long for hospitals to implement simple procedures, such as surgical checklists, when they can lead to dramatic improvements in surgical success. They determined that money may actually play a role, meaning hospitals and doctors have a financial disincentive to get every surgery right.

The study's authors acknowledged that fixing the problem will require a lot of hard work. They suggest that the insurance industry change its way of reimbursing doctors and hospitals, paying based on surgical success rather than based on the number of operations performed. Doing this would create a true financial incentive for healthcare provides to work their hardest to ensure complication-free procedures.

If you or a family member has been the victim of wrong site or side surgery don't walk away without making a claim, you are entitled to fair payment for your injury. Call Missouri & Illinois medical malpractice lawyer Ben Sansone for a free meeting to discuss your case. (314) 863-0500.

Source: "Lawsuit alleges doctor operated on wrong side of patient's brain," published at FoxNews.com.

See Our Related Blog Posts:

Wrong Site Surgery: Malpracitce from Operating or Cutting on Wrong Body Part

Post-Concussion Symptom Scale (PCSS) and the Mayo Concussion Test

FDA Warns About Disease Caused By Contaminated Mattresses

Tue, 21 May 2013 13:52:02 -0600

The U.S. Food and Drug Administration recently released an alert to nursing home providers across the country about the potential dangers posed by contaminated mattresses. Specifically, the alert referred to the risk of dangerous infections that can start when worn or damaged mattress covers allow blood and other bodily fluids to penetrate medical beds in nursing home facilities.

The FDA safety bulletin said that medical mattress covers are designed to protect the mattress itself from contaminated fluids. The problem is that due to overuse and simple old age, many of these covers can become worn. The wear and tear on mattress covers can cause leakage in places, allowing bodily fluids to penetrate to the inner layers of the mattress. This is possible even in covers that claim to be water-proof or which are coated in antibacterial substances designed to kill viruses and bacteria.

The FDA says that it believes damaged mattress covers are responsible for several potential infection outbreaks that have occurred across the country in nursing homes. Specifically, the FDA says that over the last two years it has received just under 500 reports associated with mattress covers that have failed to prevent bodily fluids from leaking into the mattress itself. Many of these reports have indicated that fluids from one patient penetrate a mattress and then later either leak out or come in contact with a new patient that has been placed on the same bed. This second patient is then at a high risk of developing infections which can spread throughout the rest of the facility.

The regulatory agency has said that problem is no small matter; instead, it believes that the issue of contaminated mattresses is widespread and seldom spotted by healthcare providers who are not trained to look out for such problems. To help combat the issue, the FDA has recommended that staff members at nursing facilities regularly check each mattress cover for visible signs of damage such as cracks, tears or pinholes which can allow fluids to leak inside the cover. Another vulnerable area in the covers is the zipper, which the FDA says can be the source of leaks. Staff members should also regularly remove the mattress cover and check inside for moisture. The mattresses should be checked for wet spots or stains, which can indicate that the cover is not functioning as it should. All damaged or soiled mattresses should be replaced immediately given the danger of an infection associated with such contaminated mattresses.

Illinois medical malpractice lawyer Ben Sansone is an experienced trial lawyer who routinely handles cases from simple car crashes to complex medical negligence cases. If you would like to discuss a potential case we are available for a free consultation to discuss your case. Call us at (314) 863-0500 or contact us online to arrange a free meeting.

Source: "FDA Warns That Damaged, Worn Covers for Medical Bed Mattresses Pose Risk," published at InfectionControlToday.com.

See Our Related Blog Posts:

$1,400,000.00 Settlement against Southern Illinois Hospital

Medical Negligence Verdict for Brain Injury

Medical Malpractice Damage Cap Stalls In Missouri Legislature

Thu, 09 May 2013 15:29:41 -0600

An attempt by the Missouri legislature to reinstate the state's cap on noneconomic damages in medical malpractice lawsuits took a hit earlier this week in the state Senate. Despite fevered attempts, with some legislators working well into the night, the measure never made it to a full vote on the Senate floor.

The sponsor of the new legislation, Senator Dan Brown, told reporters that he would continue working on getting the measure before a full vote of the Senate body before the end of this year's legislative session. Senator Brown is under the gun given that the legislature only has until May 17th to pass new measures before a mandatory adjournment.

Senator Brown said the negotiations broke down over the precise dollar amount that would be involved. The measure was meant to reimpose a limit on noneconomic damages in med mal cases, which means limiting the amount of money injured patients can collect for pain and suffering. The previous med mal cap was struck down by the Missouri Supreme Court last year, much to the chagrin of Republican legislators who believe the cap is crucial to curb what they view as "frivolous lawsuits" (a ridiculous allegation). The state Supreme Court decided that the law, capping damages at $350,000, violated the state's constitutional right to a jury trial given that the caps act as a restriction on a jury's fact-finding role.

The newly proposed measure, HB 112, seeks to do an end run around the Supreme Court by eliminating a common-law right to file lawsuits over health care services. The new right would be statutory instead, and would include a damage cap of $350,000. The measure was approved earlier last month in a 93-62 vote in the House.

Supporters of the measure, including Senator Brown, argue that the legislation is necessary to help reign in malpractice insurance premiums and to ensure that doctors continue to want to practice in the state. Opponents argue that a cap is not only unconstitutional, but is designed to protect wrongdoers at the expense of those who have suffered horrific and possibly irreparable harm. In some cases, larger damage awards are necessary, painful measures that are meant to send a strong message to the perpetrators and others who might be inclined to cut similar corners in the future. By implementing a damage cap doctors and healthcare providers know that there is a ceiling to how much money they can be forced to pay out for pain and suffering.

Medical negligence lawyer Ben Sansone is located in St Louis (Clayton) Missouri and handles medical negligence cases across all of Missouri and Illinois. For a free consultation please call (314) 863-0500 or contact us online.

Source: "Medical Malpractice Cap Bill Stuck In Missouri Senate," by Marshall Griffin, published at KCUR.org.

See Our Related Blog Posts:

New Push To Resurrect Missouri Med Mal Damage Cap. -- 2nd Amendment Off limits! But the 7th Amendment? Well.....

Medical Malpractice Damage Caps Unconstitutional in Negligence Actions BUT NOT Wrongful Death Actions

Can You Judge An Injury Lawyer By Their Online Reputation?

Thu, 09 May 2013 10:41:14 -0600

By Guest Author:

More and more, people are turning to the Internet to research information about lawsuits, lawyers, and court cases. While this is a good starting point in some instances, anyone performing these searches must be aware of the large amount of misinformation posted online. Even though there are a number of reputable websites offering concrete information, they are often lost in the shuffle of bad reviews and untruths.
Why does misinformation about injury lawyer show up online?

An unhappy client: If a client believes the injury attorney has not represented them in the way they expected, they could use the Internet as a way of retaliating. Some disgruntled clients post on blogs, in forums, or on review sites.

Unprofessional competition: As sad as this reality is, there are competing accident attorneys that have posted unreliable information as a way of damaging their competition's online reputation. Not only is this unprofessional, but it is also defamation of character.

Disgruntled employees: Not everyone has good experiences in their work environment 100% of the time. If an employee leaves a job under unfavorable circumstances or they believed they were treated unfairly in the workplace, it is possible they will retaliate with negative reviews, blog posts, or forum postings.

How can a researcher weed through the good from the bad?

The best way to determine which trial attorney to choose is to perform preliminary research online. This preliminary research should include information gathered from the Bar Association, the lawyer's contact information, the lawyer's references (if any) found on their website, and client testimonies found on the firm's website.
From there, schedule a consultation with the lawyer in order to perform a face to face interview. During this consultation, the injury lawyer will also be asking pointed questions about the case. In addition to determining if this lawyer is a good fit for your case, you will also be learning if their personality is a good match for a long-term business relationship.

Gather the facts in order to use the best judgment

After the initial research is conducted and the interviews are completed, it is easy to see if the online reviews and comments are correct or not. Because this is a court case, thorough research is essential to producing the best possible outcome. If references are not available on the lawyer or firm's website, request this information during the initial consultation. A reputable lawyer will be happy to provide this information upon request because they have nothing to hide.

The bottom line:

Even though it is easy to read something online and believe it is the truth, many times it is not. Unless something is presented on a government website, in a University publication, or in a reputable journal, information online should be taken with a grain of salt. Be aware of misinformation posted by unhappy clients, disgruntled employees, and unprofessional competing law firms when choosing an accident and injury lawyer.

Author bio: Jennifer Greenleaf is a Legal Studies major through University of Maryland University College's distance learning program. She has been a freelance writer since 1999 covering multiple niches such as legal matters, home improvement, and parenting. You can learn more about her on Google+.

To arrange an in person meeting to answer all of your questions, call the injury law-firm of Sansone / Lauber at (314) 863-0500 or contact us online.

Missouri Woman Faces Criminal Charges & Civil Suit After Auto Accident -- Caused by Sneezing?

Wed, 08 May 2013 15:52:16 -0600

Earlier this month a driver from Clay County, Missouri, plead guilty to careless and imprudent driving after a sneezing attack led to her hitting and killing another motorist. Police say the woman hit the other driver head-on after drifting out of her lane. There is a defense to negligence based on a sudden and unexpected medical condition, such as a seizure or a heart attack that causes you to loose control. But a sneeze? Probably not a good defense to a Missouri wrongful death action; especially if the driver pleads guilty to criminal charges which is an admission of the negligent act.

The accident in question occurred back in November (which we previously discussed here) of last year when Brady hit Laura McClendon, killing her and paralyzing her two-year-old son. The accident took place just outside of Smithville, MO and occurred when Brady began having a sneezing attack. The sneezing caused her to lose control of her vehicle, crossing the centerline of the narrow road. She eventually drifted far enough over the line and that she struck McClendon's vehicle head-on.

Brady now faces up to 18 months in jail and a fine of $1,500. Brady has not yet been sentenced, authorities say that will happen later in June. It's a terrible price to pay for the victims and the driver, all because of a careless sneezing fit.

Police took the deadly accident as an opportunity to remind drivers about the importance of maintaining control over your vehicle, emphasizing how even momentary lapses, like this one, could lead to disaster. Officers said that if a driver starts sneezing it is critical that they continue to control the car. Attorneys say that Brady could have easily slowed her car down or pulled over until her sneezing episode subsided.

The family of McClendon has now filed a wrongful death suit against Brady. It's important to understand that in Missouri, individuals can file suit against negligent parties who have caused them harm regardless of whether criminal charges are being pursued. Despite Brady's prosecution and even potential jail time, the McClendon's family is still permitted to file suit for civil compensation. In fact, her plead of guilty to the careless and imprudent driving can and will be used in the civil auto crash case to prove it was her fault.

Another unfortunate bit of news came from the police who said that Brady had no insurance at the time of the deadly accident. In Missouri, and most other states, the law requires the owner of a motor vehicle to have it insured before operating it on state roadways. Sadly, many people decide to disobey this requirement and drive without proper insurance.

If you are ever involved in an accident and the other driver has no insurance, then you will be forced to make what is known as an uninsured motorist claim against your car insurance policy. Everyone in Missouri is required to carry a minimum of $25,000 in uninsured motorist coverage in case such an accident does occur. Once you file a UM claim, your insurance company steps in to take the place of the negligent driver and can be held liable for your medical bills, lost wages, and pain and suffering.

Though this is welcome news for the family of the woman killed in the accident, $25,000 does not go very far. There are countless situations where clients wished they carried more than $25,000 in uninsured motorist coverage. Given the potential harm that can result in such uninsured driver accidents, it's a good idea to carry the maximum uninsured motorist coverage allowed under your policy.

If you or someone you know has a loved one who has been seriously or fatally injured in any kind of accident due to the negligence of another party, you do have options to receive compensation for this loss. For information on how to protect your rights in a situation of negligence or wrongful death, please call one of the St. Louis Missouri car accident attorneys at (314) 863-0500 today or contact us online.

Source: "Driver Guilty of Careless Driving After Sneezing While Driving Fatality," by Kathryn Brady, published at Yahoo.com.

See Our Related Blog Posts:

Missouri Fatal Car Accident: Caused by Sneezing?

Are Pictures of Car Damage Relevant in Missouri Car Crash Trials?

Three Tips on How to Find the Right Lawyer for Your Case

Mon, 06 May 2013 08:31:36 -0600

By guest Author

If you have a significant enough problem to go see an attorney you need to make sure that you consult with not just any lawyer, but the right lawyer for your case. Here are a few tips on how to decide on just who is the "right lawyer":

Tip #1 - Find a Lawyer Who Is Experienced With Your Kind of Case

You need an attorney who is experienced with handling whatever kind of problem you are dealing with. If you had a family member who passed away and you need assistance and link their estate, then you need an attorney experienced with probate law. If you're injured in a car accident, then you need an experienced personal injury attorney like Benjamin Sansone. If your spouse has filed for divorce, then you need an experienced family law attorney. Whatever your issue make sure you go to an attorney with experience in that field. The last thing you want to do is hire an attorney with little to no experience in that field and allow them to get "on-the-job" training at your expense.

Tip #2 - Discover What Past Clients Say about the Lawyer

It is best if you can get a personal recommendation from someone who has been a client of the lawyer. But sometimes you don't know anyone who has had this particular kind of problem before. In that case the next best thing to a personal recommendation from a friend is to hear what past clients have to say about working with the lawyer. Often you can find reviews about lawyers on Google, Yahoo, or avvo.com. Ideally, you could hear firsthand what a past client says about the experience of working with the lawyer, but if that just isn't possible then online reviews are a great substitute.

Tip #3 - Hire a Lawyer You Are Comfortable With

Ask yourself after meeting with the lawyer whether you felt comfortable with him or her. Did they listen carefully to what you had to say? Did they fully answer your questions and make sure that you understood everything and didn't have any other issues to discuss? Overall do you feel comfortable with the idea of working with them on your case? This is an area where you can simply follow your instincts. Don't worry about why you feel the way you do or looking for concrete justifications for your feelings, just go with your gut. If your instincts are that this is not the right lawyer for you, then you should keep looking.

About the Author

Scott Morgan is a board certified Texas family law attorney who has represented divorce clients in Texas since 1994. He is the founder of the Morgan Law Firm which has offices in Houston, Austin and Sugar Land.

Medical Diagnostic Errors are the most Deadly

Fri, 03 May 2013 15:07:06 -0600

According to a recent study by doctors at Johns Hopkins University, diagnostic errors are not only the most common but also the most deadly category of medical errors. The study estimated that nearly 160,000 patients die each and every year due to misdiagnosis.

The study, which has been published in the journal BMJ Quality and Safety, examined some 350,000 medical malpractice claims over the past 25 years and discovered that diagnostic mistakes were by far the most damaging and costly mistake a doctor could make. Researchers discovered that diagnostic error accounted for just under 30 percent of the total med mal claims, more than those related to surgical mistakes, medication errors or treatment problems. Faulty diagnosis was also responsible for the largest share of the payments made, 35% of the total medical malpractice payouts. Finally, diagnostic errors resulted in death in just over 40% of the malpractice cases, again, the largest category.

Physicians, worried about possible lawsuits, claim they are forced to practice "defensive medicine" which leads them to dispense more medical tests than are necessary. Well, if a test is not necessary then it is not malpractice to not order it!

Another problem highlighted by the study is the lack of transparency associated with diagnostic errors. While most hospitals reveal figures regarding surgical success, few if any publicize their diagnostic error rates, a figure that could be very useful to consumers.

The authors of the study said that some of the most commonly misdiagnosed errors that were uncovered in the course of their study include pneumonia, congestive heart failure, renal failure, cancer and kidney infections. The study also revealed that doctors routinely misidentify strokes. Experts believe that doctors overlook more than 100,000 strokes annually, a terribly costly oversight in terms of patient health and monetary compensation.

The study also suggested some of the most common reasons for such diagnostic errors, chief among them, a breakdown in communication between doctors and patients during the initial office visit. Another source of concern is when doctors fail to refer patients to specialists who might know more about the specific illness. Other common problems include failures to interpret test rights correctly and a failure on the part of the doctor to follow up with the patient after a diagnosis has been made.

If you or a family member has been the victim of medical malpractice, you are entitled to fair payment for your injury. Call Missouri & Illinois medical malpractice lawyer Ben Sansone for a free meeting to discuss your case at (314) 863-0500.
Source: "Adding Up Diagnosis Errors," by Laura Landro, published at WSJ.com.

See Our Related Blog Posts:

Wrong Site Surgery: Malpracitce from Operating or Cutting on Wrong Body Part

$1,400,000.00 Settlement against Southern Illinois Hospital - Medical Malpractice by Nurses

Wrong Site Surgery: Malpracitce from Operating or Cutting on Wrong Body Part

Sat, 27 Apr 2013 12:01:48 -0600

One of the most devastating types of medical malpractice, and unfortunately a common mistake, is doctors operating on the wrong part of the body or the wrong side. A former state medical commissioner and President of the Joint Commission (the largest healthcare accrediting agency) stated that the wrong site surgery problem is very difficult to deal with and all too common.

"[S]uch errors are growing in part because of increased time pressures. Preventing wrong-site surgery also "turns out to be more complicated to eradicate than anybody thought," he said, because it involves changing the culture of hospitals and getting doctors -- who typically prize their autonomy, resist checklists and underestimate their propensity for error -- to follow standardized procedures and work in teams."

Studies of wrong site surgery errors have revealed, over and over, that on of the largest factors contributing to this preventable error is that surgeon's chose not to do a timeout. They chose not to take this patient safety precaution which exposes the patient to needless harm. A "Time out" is a "procedure just before the surgery begins, there is a "time out" and it is verified to everyone on the surgical team that they have the proper patient and everyone knows the proper surgical procedure and surgical site." See Wrong Site Surgery Malpractice

Medical professionals admit that the reported cases of wrong site surgery is just scratching the surface of the problem. Reported cases are "clearly the tip of the iceberg" said Philip F. Stahel, director of orthopedic surgery. Stahl conducted a study in 2010 of 132 wrong site surgery and wrong patient surgery cases, in 72% of the cases, there was no "time out". The study also indicated that most doctors resist the rules such as time out or sign your site, they don't think they could make such a mistake.

Contrary to the propaganda by anti-civil justice movement (tort "reform" advocates), it is a fact that the majority of patients (67%) victimized by wrong site surgery never seek legal recourse. Furthermore, the average payment for wrong site or wrong person surgery was only about $65,000, and that was only for the 33% of injured patients that pursued legal action. This is a fact reported by the medical associations, but you will never hear about that when the politicians start asking for you to support medical malpractice caps and other reforms.

"The legal system typically offers little recourse: One study found that only a third of wrong-site cases result in a malpractice suit. Stahel's team found that the average payment was less than $81,000 in cases resulting in a lawsuit and $47,000 in those resolved without legal action."

"Effort To End Surgeries On Wrong Patient Or Body Part Falters", Health News, June 2011.

The statistics abortive do not reflect our law firm's success rate, and is a reminder about why is is so important to hire an experienced lawyer specializing in medical negligence. Our average healthcare malpractice settlement is $1.7 Million.

Most patients do not know that medical mistakes, even these simple ones are all too common. They don't know until it happens to them or a loved one. Consider these statements from doctors that are heads of hospitals across the country:

"Health care has far too little accountability for results. ... All the pressures are on the side of production; that's how you get paid," said Hopkins's Pronovost, who adds that increased pressure to turn over operating rooms quickly has trumped patient safety, increasing the chance of error.

In surgery "sometimes people say, 'Well, this isn't quite right, but someone else will address it.' In aviation they don't do that, because the plane will crash and they will all die," he said.

Reducing the number of errors will require tougher reporting rules and increased transparency. Kizer, California's former chief health officer, advocates mandatory reporting of wrong-site errors to a federal agency so cases can be investigated and the results publicly reported.

Post-Concussion Symptom Scale (PCSS) and the Mayo Concussion Test

Fri, 26 Apr 2013 08:57:41 -0600

As a Missouri & Illinois brain injury lawyer, I represent many victims of car accidents, and other causes of injury, who suffer from various brain injuries. Proper evaluation of a head injury requires early documentation of complaints and discussing all the potential symptoms with the injured person to make sure they are realizing all the symptoms they may be suffering as a result of a concussion or other injury. Concussions and Post-Concussion Syndrome is largely a subjective diagnosis, meaning the physicians rely heavily on the patient's reporting of problems as opposed to objective tests, such as a CT or MRI. In fact, about 85% of patients suffering from concussions have no signs of the injury visible on a CT. Physicians have developed the Post Concussion Test - PCSS and the Mayo Clinic has their own version referred to as the Mayo Concussion Test.

Below is a video by Mayo Clinic Neurologists discussing the importance of the testing in Concussion cases and the challenges of evaluating Post-Concussion Syndrome.

Taking this test early and often and evaluation by a neurologist are very important to the diagnosis of the severity of the concussion. Children's Hospital Neurologists have published articles showing that the higher the score on the above Post-Concussion tests, the more likely the patient will suffer the symptoms for a longer period of time or maybe even permanently.

"The higher the score, the greater chance of a prolonged recovery time"

Dr. William P. Meehan, III and colleagues from Boston Children's Hospital and the University of Pittsburgh Medical Center analyzed data from 182 patients who were seen at a sports concussion clinic within 3 weeks of injury. Patients completed the Post-Concussion Symptom Scale (PCSS), which contains 22 different symptoms that they ranked from 0-6 (0 = not experiencing a given symptom; 6 = describing the symptom as "severe"). Patients were separated into 2 groups: those who were symptom-free within 28 days and those who had symptoms for longer than 28 days. After analyzing data for numerous variables, including total score of the PCSS at initial visit, age, and amnesia symptoms, only the total score on the PCSS was independently associated with symptoms lasting longer than 28 days; the higher the score, the greater chance of a prolonged recovery time.

Elsevier Health Sciences (2013, April 25). More severe concussion symptoms lead to longer recovery time

The most common defense in car accident cases and other injury cases where a head injury is involved, is that the symptoms are not objectively diagnosed and that the problems likely evaporated after a couple of weeks. So it is very important to have an experienced brain injury attorney on your side to help guide you with proper medical treatment and to make certain that the legal approach to your case is done properly and effectively, to guarantee full recovery of all your past and future harms and losses. This is important in the minor car accident case to the traumatic brain injury case resulting in permanent neurological problems such as coma, paralysis, or debilitating cognitive deficits.

Contact a St Louis lawyer that specializes in brain injuries today for a free consultation. (314) 863-0500.

Related Blog Posts:

$1.4 Million dollar settlement: Brain Injury from Medical Malpractice at Southern Illinois Hospital.
Children and Head Injuries

Charles Bakken Memorial Golf Tournament - Edwardsville, Illinois on June 1, 2013

Tue, 23 Apr 2013 14:44:01 -0600

I never had the pleasure of meeting Charles Bakken, but I had the privilege of representing his children after his unfortunate death. Everything I have heard about him is extremely positive and his loss is a significant one that is and will be felt by the community.

His friends and family have organized a Memorial Golf Tournament and our law firm is proud to be a Tournament Title Sponsor. The proceeds from the tournament will go to benefit the St John Neumann Catholic School and Parrish Community. A Parrish and community that Mr Bakken was an influential part of.

If interested in playing or just donating the Golf Tournament Flyer is attached here, with all the information you need. It will be held at the Oak Brook Golf Club in Edwardsville, Illinois.

INFORMATION - Charles Bakken Memorial Golf Tournament.pdf

$260,000.00 Settlement: Collinsville, Illinois Motorcycle Accident

Tue, 23 Apr 2013 11:12:27 -0600

Recently Illinois personal injury lawyer Ben Sansone settled a Collinsville Illinois motorcycle crash for $260,000.00, which represented the full amount of auto insurance coverage available, a combination of liability insurance and "UIM" Coverage - Under-Insured Motorist Coverage. The car-bike collision was the result of an intersection accident. The motorcyclist was making a left turn across oncoming lanes of traffic when his bike stalled, he was moving his bike out of the intersection when the driver approaching the intersection did not stop, swerve, or even slow down; clear evidence that she was not paying any attention. The KSDK News report of the Illinois motorcycle accident is here.

The investigation before the prosecution of this case by our motorcycle injury lawyers was crucial as there were at least six witnesses that had to be interviewed. Their recollection of the incident was recorded early on, and supported our negligence claim against the driver.

The investigating officer concluded that the at-fault driver activated her brake only one second before striking the motorcycle and that the driver had adequate time to respond to avoid the collision. The driver was negligent as she chose not to keep an adequate lookout and possibly chose to drive after chemotherapy when her mental alertness was affected by the therapy and medication.

Witness statements supported that the driver violated her duty to keep an adequate lookout as she had ample opportunity to observe the cyclist having stalled in the intersection and attempting to push his bike to safety.

Witness D.G. drove by the intersection in the same direction as the driver, before the motorcyclist made his left turn, no one was driving behind him, saw motorcyclist make a left turn and then have trouble with his bike. Observed him put his foot down and push himself, he then saw the red truck drive around the corner and cause the bike accident him without slowing down.

Witness B.R. saw motorcycle make a left turn, observed engine stall on the motorcycle, saw him pushing the bike with his legs while still seated on the bike and then saw the collision.

Witness M.L. was driving behind the at-fault driver, he saw the motorcycle in plenty of time, slowed down for the motorcycle, but the truck did not and the at-fault driver did not hit the brakes until after running over the motorcycle. The witness was able to see the motorcycle, appreciate the fact he needed to slow down, yet the at-fault driver did not react until after the collision.

Witness M.B. was driving behind the at-fault driver, he had time to observe the motorcycle; he slowed down to avoid a collision. He stated that he yelled "STOP" numerous times before the collision. He stated that in his opinion the at-fault driver was "oblivious" to what was in front of her.

Early investigation was critical to proving the liability in this case. Additionally, the Collinsville Police Department did an excellent job with the accident reconstruction. The liability proof on this case all came down to timing, and it is very important to get witnesses to commit to times, distances, and speeds. Based on the evidence collected we were able to make a strong case that the driver should have seen the motorcycle rider sooner and avoided the collision, despite the fact the driver has a green light and the motorcycle was stalled in the intersection for a short time.

Public safety and the prevention of needless injury and death requires all drivers to pay attention when driving and not to drive when severely fatigued or under the influence of alcohol or even some medications. In this case there was also evidence that the driver recently had chemotherapy, most people know that chemotherapy treatment is very difficult physically and can lead to serious fatigue both physically and mentally.

Related Blog Posts:

Motorcycle Safety & The High Cost of Motorcycle Accidents

Deadly motorcycle accident in Mexico Missouri sparks calls for safety

Migraine Headaches After Car Accidents - Researchers Decoding Pain with 3D Hologram

Tue, 23 Apr 2013 09:19:58 -0600

Head injuries, such as concussions and traumatic brain injury, are common after many car crashes and very common in high impact car collisions. The driver or passengers head often strike parts of the car during the impact or hit the airbag violently. This results in a range of brain injuries; from a minor brain injury to the severe brain injury.

The long term effects of a brain injury suffered in a car accident can include everything from minor headaches and dizziness to a coma or death. A very common symptom of a concussion and other head injuries is severe headaches. These headaches sometimes last a few days or even a few years or longer, depending on the nature and extent of the brain injury. See Long Term Effects of TBI. Also see Head Injury Concerns for Bicyclists: List of Symptoms of a Brain Injury

Researchers at the University of Michigan are now using the 3D model pictured above to try and understand how the brain fights of migraine headache pain itself. the virtual reality model is based on images taken of the patient during a migraine headache attack.

Different colors in the 3-D brain give clues about chemical processes happening during a patient's migraine attack using a PET scan, or positron emission tomography, a type of medical imaging. "This high level of immersion (in 3-D) effectively places our investigators inside the actual patient's brain image" See, Hologram-Like 3-D Brain Helps Researchers Decode Migraine Pain

The diagnosis and treatment of head injuries has taken a very important role in the last 10 years in the medical community. The public awareness of these injuries and the effects they have are much more apparent now since the Iraq and Afghanistan wars. Thousands of returning veterans are suffering concussions and more severe head injuries from the prolific use of IEDs during combat. Additionally, the world of sports, particularly football, has made the issue of head injuries and the serious and very real effects more real. The public view of head injuries is now that it is a very real and substantial injury as opposed to someone just being a cry-baby. This leads to more significant research in the medical profession.

About 2 months ago we took a head injury case to trial in St Louis County, Missouri. Part of any personal injury trial is voir dire or jury selection. I discussed concussions and head injuries extensively with the jury, and my impression is that most people believe that concussions and other head injuries are now very serious medical conditions. One juror was a high school football coach, and we discussed how even subtle signs of a head injury are taken very seriously now, as opposed to 15-20 years ago when a player got dazed and confused that they would maybe sit out for a minute or even rush right back into the gridiron. This is one example of how the public is taking head injuries and symptoms much more seriously in today's society.

Likewise, if you are in a car accident and maybe suffered a head injury, even a very minor one, it is very wise to get it checked out and not just assume it will go away and not cause any problems. Our car accident attorneys can help direct your medical care by recommending specialist or other doctors you may want to visit based on symptoms and injuries you are suffering. Even if you cannot afford to see a doctor, we can help.

If you have suffered a brain injury as the result of a car accident or the negligence of another person or company contact St Louis brain injury lawyer Ben Sansone for a free, no obligation, consultation. Call (314) 863-0500 or contact us online here.

Are Pictures of Car Damage Relevant in Missouri Car Crash Trials?

Thu, 11 Apr 2013 14:24:04 -0600

For obvious reasons, when the damage to the cars involved in a collision is severe, the Plaintiff wants to show pictures of the damage to the jury and the defense wants to try and exclude them as irrelevant; and the opposite is true when the damage to the vehicles is minor. Personally, whenever I take a car accident case to trial in Missouri, I want the jury to see the pictures regardless if the damage is minor or major because they are going to want to see these pictures to fully understand all the circumstances about the collision. However, oftentimes pictures are excluded by the judge based on motion filed by the victim's lawyer of the insurance defense lawyer.

So what is the law in Missouri about when car damage pics can be used and when they should not be used at trial in a car accident lawsuit?

Oftentimes, if the damage is minor the defense will try to introduce evidence of property damage in an attempt to argue or infer to a jury that there is a scientific and/or medical relationship between degree of vehicle damage and degree of occupant's personal injury. It can be argued that such a conclusion would be unfounded if not supported by expert testimony establishing it, so if no expert has been identified, then the pictures are irrelevant. In this situation the Plaintiff should argue that the pictures invite the jury to unfairly speculate to the prejudice of a litigant. As the Western District has explained, a trial judge is required to consider both the degree of probative value and the degree of potential prejudicial effect. Even relevant evidence should be excluded when the potential prejudicial effect of the evidence exceeds the probative value. Stevinson v. Deffenbaugh Industries, Inc., 870 S.W.2d 851, 860 (Mo.App. 1993). Evidence is considered prejudicial if it "tends to lead the jury to decide the case on some basis other than the established propositions in the case."

Additionally, Missouri Courts Have Held that the speed of impact cannot be determined by property damage photographs. The defendant may be trying to ask the jury to conclude that the speed or force of impact itself can be determined by the testimony of witnesses or by the photographs of damage. But such a conclusion lacks reliable foundation.

In Missey v. Kwan, the Eastern District held that a police officer could not be permitted to testify as to speed of vehicles at impact, when his opinion was based on what witnesses said about the speed and on the condition of the vehicle following the impact. Missey v. Kwan, 595 S.W.2d 460, 463 (Mo.App.E.D. 1980) The Missey court noted, that while skid marks could provide a sufficient basis for estimating speed, "Such is not the case with estimates of speed based on conditions of the vehicles after impact." M

In Everett v. Bishop, the Eastern District declined to allow even an accident reconstructionist to testify as to speed of impact when his opinions was based on photographs of property damage. Everett v. Bishop, 680 S.W.2d 779, 781 (Mo.App. E.D. 1984) If evidence of property damage does not provide a sufficient basis for an expert to reach conclusions about speed or force, surely it does not provide sufficient basis for a layperson to do so.

Permitting the Jury to Speculate that Allegedly "Minor" Impact Equals Minor Injury Would Prejudice the Plaintiff

If the defendant also apparently intends to invite a jury of laypersons to take a next step and reach a medical conclusion: that the severity of injury is determined by the force of impact. Such an argument is prejudicial by definition because it would invite the jury to decide the case on the basis of a proposition which is not established - that is, the proposition that minor impact equals minor injury. This conclusion would require supporting expert testimony. Yo need to ask, has the defendant disclosed medical, biomechanical, or other experts to support it. The Defendant should not be allowed to ask the jury to assume it, based on "common sense." Missouri trial courts have properly rejected this effort. While there is apparently no Missouri appellate decision on the question, one state supreme court and two state appellate courts have refused to permit such boot-strapping on the purported basis of "common sense."

The Delaware Supreme Court in Davis v. Maute (copy attached) held that without expert testimony is was reversible error to admit property damage evidence and allow defense counsel to argue that a serious injury could not have resulted from a "minor" accident. Davis v. Maute, 770 A.2d 36 (Del. 2001). Over objection, defense counsel there was permitted to introduce evidence of the cars involved in the accident, and then bootstrap into the argument that because the property damage appeared to be minor, the injury must not have been significant. The Delaware Supreme Court reversed, concluding that the only relevance of the photographs was to suggest that the plaintiff could not have sustained serious injury from an allegedly minor accident, and stating that absent expert testimony, "any inference by the jury that minimal damage to Plaintiff's car translates into minimal personal injuries to the Plaintiff would necessarily amount to unguided speculation." Davis v. Maute, supra, 770 A.2d at 40 (emphasis added).
A New Jersey appellate court agreed in Brenman v. Demello, 383 N.J. Super. 521, 890 A.2d 741 (N.J. Super. 2006). The Brenman court concluded that "If the pertinent field of expertise has yet to establish a scientific basis for the connection, we question how a jury may be expected to draw an inference of causation in the absence of any proof, expert or otherwise."

Likewise, an Illinois appellate court has held that a decision by the trial court granting the plaintiff's motion in limine to exclude property damage photographs or testimony as to the damage caused to the vehicles was correct, holding that to do so is necessary "to avoid what amounts to the jury forming medical opinions." DiCosola v. Bowman, 342 Ill.App.3d 530, 536-37, 794 N.E.2d 875-76, 880 (2003). In so holding, the appellate court cited the Illinois Supreme Court case of Voykin v. DeDoer, which noted:

(w)ithout question, the human body is complex...In most cases, the connection between the parts of the body and past and current injuries is a subject that is beyond the ken of the average layperson. Because of this complexity, we do not believe that, in normal circumstances, a lay juror can effectively or accurately assess the relationship between prior injury and current injury without expert assistance.

The same principles apply to an attempt to correlate property damage to physical injury. Without expert testimony, there is not a sufficient basis to make such a conclusion, and attempts to have the jury supply such a scientific basis with their "common sense" should fail.

In Missouri, Witnesses cannot Claim Victim's Symptoms are Effected by Litigation - The Malingering Defense

Wed, 10 Apr 2013 14:55:43 -0600

Generally, under Missouri law, witnesses cannot testify about the credibility or truthfulness of another witness or party to the case. That is the job of the jury, to weigh credibility and decide who is telling the truth. So obviously, one witness cannot say another is dishonest or opine that the victim is exaggerating her pain because of a lawsuit. This is referred to as malingering. Whether it is from a lay witness or an expert medical witnesses, it is plain error to admit testimony that is a thinly veiled comment on a witness' credibility.

However, what about defense hired doctors who try and claim that patients who are involved in litigation tend to have complaints of pain longer than those that do not have ongoing litigation? We had on such situation when a brain injury case involving post-concussion syndrome went to trial recently in St Louis County court. The neuropsychologist that examined the Plaintiff testified in his deposition (testimony before trial) that patients with post concussion syndrome, who complain of symptoms more than 1 year from the date of injury, may be complaining of symptoms because of ongoing litigation. This testimony is absolutely inadmissible as the doctor is very obviously implying that the Plaintiff is making up their complaints because of an ongoing lawsuit. This is what defense doctor's are hired to do, call the Plaintiff a liar or malingerer and try to imply to the jury they are only saying they are hurt for money. This is a witness testifying about the credibility of another witness, again, the job of the jury to weigh credibility, not witnesses.

In Allen v. Andrews, 599 S.W.2d 262 (Mo.App.S.D. 1980), the plaintiff hurt their neck in a Springfield Missouri car accident. The case went to trial, however, after the verdict the Judge ordered a new trial because of testimony from a defense doctor that should not have been allowed. In particular, a treating physician called to testify by the defendant testified:

"I would just like to make a broad statement insofar as my dealings with patients with injuries which involve litigation.... I repeat that without exception patients with litigation in injured necks apparently recover because they never come back to see me once the litigation has been settled, so I would say (the plaintiff's) neck would recover without any residual disability."

This case supports the proposition that testimony offering generalized opinions as to the credibility of plaintiffs is unfairly prejudicial.

In Yingling v. Hartwig, 925 S.W.2d. 952, 956 (Mo. App. 1996), comments by a defense doctor that "Patients who are involved in litigation tend to have their subjective complaints last considerably longer" than patients who are not in litigation were allowed by the trial judge. However, the court of appeals found that the allowance of this testimony to be an abuse of discretion. That comment was improper as it was a comment or opinion as to the truth or veracity of the Plaintiff, and that is an issue for the jury to decide.

The court began its analysis by noting that the challenged witness' testimony in the case before it was similar to the witness testimony considered in the Allen case discussed above. In particular, the court observed:

"[A]s in Allen, the trial court in the case at bar abused its discretion in allowing testimony because it was highly prejudicial to the Yinglings' case. [The] testimony constituted broad-sweeping statements reflecting on "people not in litigation" and "people who are in litigation" - generalities, without any indication of similarity with or application to Christina Yingling. A court of law is not a public forum, and witnesses are not permitted to make general declarations about matters wholly unrelated to the parties. * * * Statements about unidentified people with unidentified injuries and complaints are irrelevant to prove whether Christina Yingling continues to suffer from her injuries, one of the issues at trial, and the trial court abused its discretion in admitting the testimony."

In other words, the court found that generalized opinions, as to the credibility and/or truthfulness of litigants in general, is irrelevant to the credibility or truthfulness of the plaintiff in a particular case, and that such opinions are unfairly prejudicial. Importantly, however, the court did not end its analysis there. Rather, the court went on to consider whether the opinion testimony in question - if assumed to be relevant and probative as to the particular plaintiff - was still too unfairly prejudicial to be admitted. The court answered this question in the affirmative. Specifically, the court said:

"Even if we assumed, arguendo, the testimony was somehow logically relevant, any probative value is far outweighed by its prejudicial effect to the Yinglings. * * * [The witness'] testimony was, in essence, a comment on a plaintiff's credibility; a statement that plaintiffs generally falsify their subjective complaints for the purpose of furthering their lawsuit and increasing their damages. Such a comment by an expert witness is inadmissible. State v. Tayler, 663 S.W.2d 235, 239 (Mo. banc. 1984) ("[E]xpert opinion testimony is not admissible as it relates to credibility of witnesses")."

"[E]ven if we could say the testimony had some logical relevance and some probative value, which we cannot, it would still be inadmissible because its prejudicial effect is wholly disproportionate to any value it might have."

Even if generalized opinion testimony regarding the tendency of litigants in general to manufacture or exaggerate their symptoms were somehow relevant and probative on the issue of whether a particular plaintiff was manufacturing or exaggerating her symptoms, such opinion testimony would nevertheless constitute an improper and inadmissible comment on a plaintiff's credibility, and would be unfairly prejudicial. On this basis, the court reversed and remanded for a new trial.

Expert testimony that comments directly on a particular witness' credibility, as well as expert testimony that expresses an opinion with respect to the credibility or truthfulness of witness of the same type under consideration invests "scientific cachet" on the central issue of credibility and should not be admitted.

$1,400,000.00 Settlement against Southern Illinois Hospital - Medical Malpractice by Nurses

Thu, 04 Apr 2013 15:51:03 -0600

As a result of the unconscionable negligence of the employees and agents of the southern Illinois hospital (named confidential per settlement agreement), a routine knee replacement resulted in a patient's life being permanently altered. One nurse, consciously disregarded and otherwise violated numerous patient safety rules which contributed to this accident then took diligent efforts to cover it up by pre-recording or altering the medical records.

When handling medical malpractice cases, injury lawyers oftentimes see the underbelly of the medical profession, the part most people rarely, if ever, see. The lack of empathy and desensitization of human suffering by some medical providers after working in the profession for many years, some turn from caring healthcare providers to factory line workers where patients are just another product running down the conveyor belt. Fortunately, the vast majority of healthcare providers are good doctors and nurses that provide good care for their patients.

One of the reasons I am very proud to be a trial lawyer is that I strongly believe in the American Civil Jury system for enforcing the safety standards of our community. A jury is the enforcer of our societies safety standards and the enforcement of those standards through civil verdicts and settlements helps keep everyone safer. Money is the great motivator fro medical professionals and administration to remember that their number one priority is the safety of their patients and not to become complacent and allow needless and avoidable injury or death occur.

As co-counsel with Illinois injury lawyers Kurt Harris and Devin Jones of the Harris Jones Law Firm in Du Quoin Illinois, we recently settled a case involving nursing neglect for $1.4 Million dollars. The patient was a known aspiration risk, yet the nurses chose to not follow protocol to reduce or prevent aspiration related injury; therefore, due to their choice not to follow procedure, our client aspirated and suffered brain damage. Even more appalling, during patient transfer between diagnostic study and his hospital room, he was left in a storage area for over an hour and was found by his daughter while in severe respiratory distress.

The nurses were incompetent in that they: (1) did not timely diagnose and respond to risk factors known to Increase the likelihood of patient aspiration; (2) did not have procedure for keeping patients located; (3) did not transfer patient to ICU when required; (4) did not properly diagnose and respond to respiratory distress of patient (aspiration); (5) staff failed to consistently follow their aspiration prevention protocol. In addition there was evidence of medical record alteration and attempts to retroactively go back and alter the records to reflect proper procedure was followed.