Blog and News

Michael Smith Named Medical Malpractice Super Lawyer for 11th Year In a Row

Michael Smith was again voted a Missouri/Kansas Super Lawyer in the field of medical malpractice litigation. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. Being voted a Super Lawyer demonstrates recognition on an attorney’s excellence and professional achievement by his or her peers. Michael has been recognized as a medical malpractice Super Lawyer every year since 2008.

Transfer on Death Provision Naming Divorced Spouse As Beneficiary

What happens when you forget to remove your ex-spouse from a transfer of death designation? A recent Missouri case addresses that issue.

Facts of Case

Matthew McWilliams owned a bass boat, motor, and two trailers. All were titled solely in his name.  He designated his wife, Lisa, as transfer-on-death (TOD). Matthew and Lisa subsequently divorced, but he did not re-title the boat, motor, and trailers or change the beneficiary designations. After Matthew died without a will or trust, Lisa claimed the titled assets based on the TOD provisions. The personal representative of Matthew’s estates disagreed and relied upon § 461.051.1 of the Missouri Statutes, which provides: 

If, after an owner makes a beneficiary designation, the owner’s marriage is dissolved or annulled, any provision of the beneficiary designation in favor of the owner’s former spouse … is revoked on the date the marriage is dissolved or annulled…. The beneficiary designation shall be given effect as if the former spouse … had disclaimed the revoked provision. 

The probate court hearing the case agreed with the estate. The assets were property of the estate and not Lisa’s.

The Ruling on Appeal

On appeal, the Missouri Southern District Court of Appeals made quick work of Lisa’s arguments that she was entitled to the assets. First, the court noted that the above statute applied and was valid. Lisa asserted that certain statutes governing the titling of motor vehicles and related assets took precedence and precluded a change in the TOD designation. Again, the Court held that, to the extent the two statutes conflicted, the statue cited above controlled and Lisa’s designation as the TOD beneficiary was null and void.


The Missouri legislature enacted this statute to address what is likely a common oversight after divorce. Many people forget to change the TOD designation after a divorce. The statue and this court’s ruling ensure that an ex-spouse does not benefit from such an oversight.

Having said that, the best practice would be to retitle or change TOD designations after a divorce to ensure the assets pass to the correct person. This is especially true if, for some reason, a spouse does want an ex-spouse to receive assets under a TOD. In others words, don’t assume a TOD designation remains valid after a divorce.

The full opinion can be found here.

Should You Claim Medical Expenses as Damages?

It used to be that an injured person would claim as many medical expenses as possible in a lawsuit. However, changes to Missouri statutes have caused attorneys to question the wisdom of this tactic. A recent Missouri Eastern District Court of Appeals decision helps explain why.

Facts of Case

On November 17, 2011, Randy Schieffer (“Schieffer”) was in a motor vehicle collision when an automobile driven by Thomas DeCleene (“DeCleene”) struck Schieffer’s vehicle. Following the incident, Mr. Schieffer experienced increasingly severe neck, shoulder, and back pain which, despite treatment, failed to improve. On August 26, 2014, Schieffer filed suit against DeCleene  for negligence. On January 2, 2015, Schieffer filed a first amended petition adding a claim of loss of consortium by Dinah Schieffer, his wife. Both the original and first amended petitions sought the recovery of $28,760.74 in medical expenses that Schieffer incurred due to the incident.

On the morning of trial, Schieffer’s counsel obtained leave from the trial court to file a second amended petition that  omitted the claim for medical expenses. The trial court then considered whether omission of that claim prevented DeCleene’s counsel from presenting evidence of Schieffer’s medical expenses at trial.

Schieffer’s counsel asserted that such evidence would be beyond the scope of the pleadings since he abandoned the claim for the recovery of medical expenses, the trial court determined that such evidence would be admissible for two reasons. First, under section 490.715.5 RSMo 2000, as amended in 2005, any party may introduce evidence of the value of medical treatment rendered to a party that was reasonable, necessary, and a proximate result of the negligence of any party. Thus, the trial court ruled that so long as DeCleene’s counsel explained to the jury that the expenses were the reasonable, necessary, and proximate result of DeCleene’s negligence, it would permit their admission into evidence. Second, the medical expenses were admissible because they may provide the jury evidence that it could consider as to the extent and nature of the damages given the amount of expenses. Following this ruling, the parties commenced with trial.

DeCleene’s counsel sought to differentiate Schieffer’s neck injuries, which were claimed to be exacerbated by the November 2011 collision, from his low-back injuries, which purportedly predated the 2011 collision and followed an unrelated automobile accident in 2000. In doing so, DeCleene’s counsel questioned Schieffer about his treatment following the collision, and Schieffer agreed that he was charged for multiple treatment sessions specifically targeting his low-back and that the medical records for those sessions did not reference his neck.


DeCleene’s counsel then attempted to introduce evidence of Schieffer’s prior medical expenses to differentiate the costs expended upon his back and neck. Schieffer’s counsel objected, but the trial court reiterated the ruling that the bills were admissible pursuant to Section 490.715.5 so long as DeCleene’s counsel admitted to the jury that the expenses were the result of DeCleene’s negligence. Following this determination, DeCleene’s counsel stated to the jury that “the amount necessary to fully satisfy [Schieffer’s medical] bills was $14,743.75,” and that “these [expenses] were reasonable, necessary, and a proximate result of the negligence of [DeCleene].”

During closing arguments, Schieffer’s counsel suggested a verdict of $300,000. This included  $125,000 for past pain and suffering, $125,000 for future pain and suffering, and some amount for medical.  DeCleene’s counsel, however, argued that Schieffer had been receiving treatment for his low back the month before the accident and he showed the jury the medical bills to establish that a portion of the medical bills wasn’t for the neck.  DeCleene’s counsel then asserted that, should the jury find that Mr. Schieffer was entitled to damages, a more appropriate verdict would be $25,000, again noting that “I had to put the evidence on to tell you what all the bills were and then to show you that a lot of it was for the back,” not his neck. After deliberating, the jury returned a verdict of $25,000. The trial court denied Schieffer’s motion for a new trial and Schieffer appealed.

The Ruling on Appeal

The appellate court held that the admission of Schieffer’s medical bills after he had dropped his claim to recover them was error and ordered a new trial. The appellate court noted that section 490.715, RSMo., was designed to allow a defendant to address issues of collateral sources of payments of medical bills (i.e., insurance).  Because no medical expenses were being claimed by Schieffer, any collateral source payments were not at issue and the statue did not apply to allow the admission of medical bills.


Under section 490.715, plaintiffs and their attorneys are faced with the consideration of whether or not to claim past medical expenses. Even a fairly large bill can sometimes be satisfied through insurance payments that are a small fraction of the amount billed. The concern is that the jury, hearing the relatively small number paid for treatment, will conclude a plaintiff’s injury is not as significant as claimed and award lower noneconomic damages. In cases with low medical expenses, it may be better to forego claiming them in an attempt to maximize the award of noneconomic damages.

The Schieffer case illustrates this concern. Although we have no way of knowing what the jury would have awarded if evidence of the medical bills had not come into evidence, it does seem quite a coincidence that the jury awarded the exact amount suggested by defense counsel when defense counsel used those medical bills as one is his main arguments against Schieffer’s claims.

The full opinion can be found here.

Unpainted Curb Not an Open and Obvious Condition

One of the issues in premises liability cases is whether the dangerous condition was open and obvious. This is because property owners may not have a duty to warn others of open and obvious dangers on the property. A recent Eastern District Court of Appeals decision addressed the issue of whether an unpainted curb constituted an open and obvious danger.

Facts of Case

Kathy Christian drove her employer’s minivan to the Saint Francis Medical Center  to pick up a client following the client’s medical treatment at the hospital. The patient drop-off and pick-up area was a two-way curved drive past the hospital doors. A canopy covering the drive was supported on the far side of the drive opposite the hospital doors by a pillar located on a traffic island. The curb of the traffic island was not painted to contrast with the drive.

Christian had been to the hospital on several occasions, including earlier that day when she transported her client to the hospital. Previously, she had always stopped or parked adjacent to the curb to her right, near the hospital doors. She never noticed the curb or the island on which the pillar stood. When Christian arrived at the hospital, a valet motioned to her to pull into the left lane, or oncoming traffic lane, and to park at the curb. Christian parked to her left in the hospital driveway, which she had never done before. This was adjacent to the traffic island. She then listened to the valet’s instructions about leaving the van with the keys in it for valet parking. She opened the van door and, as she exited, stumbled on the adjacent curb. Christian did not see the curb and  the valet did not warn her about it. The fall caused her to suffer a compound fracture to her femur.

Christian then filed suit against the hospital asserting a claim of premises liability.

The Trial Court Ruling

The trial court granted Saint Francis Medical Center summary judgment. The trial court did not state the basis for its grant of summary judgment. Christian then appealed.

The Ruling on Appeal

The Eastern District Court of Appeals reversed the trial court’s summary judgment. In doing so, it noted that the court could not say, as a matter of law, that the curb that was the same color as the driveway was an open and obvious danger that would allow the hospital to rely on Christian to see and appreciate the risk of danger while parking a vehicle at the instruction of a valet in the oncoming traffic lane with congested traffic conditions. In addition, when determining whether the curb constituted a dangerous condition, a jury could consider whether Christian would have been distracted by the activity in the patient pick-up/drop-off area. Therefore, there were issues of fact Christian was entitled to have a jury decide.


Many people would think a curb constitutes an open and obvious condition. This case supports the proposition that the legal analysis can be heavily fact dependent. Was the curb the same color as the street? Were there other conditions present that affected a person’s appreciation or observation of the curb? What distractions existed that could case a person not to notice the curb? All of these questions should be addressed in analyzing this issue. However, this may merely avoid judgment as a matter of law against a plaintiff. Juries still could find that a curb should be seen appreciated by anyone, regardless of its color and surrounding conditions.

The full opinion can be found here.

Scope of Medical Records Discovery Limited by Appellate Court

In personal injury and wrongful death cases, the injured or deceased party’s medical history is virtually always the subject of discovery. Discovery usually involves the collection of medical records. The scope of medical records discovery is a frequent area of disagreement between opposing parties. A recent Southern District of Missouri Court of Appeals decision addressed this issue.

Facts of Case

Decedent Jacob Williams died while repairing dump/bale bed on a truck in Williams’ auto repair shop. While working on the truck, Williams leaned underneath the bed and touched the interlock switch. This caused the bed to fall on him and kill him.

Williams’ surviving spouse brought a wrongful death claim against the manufacturer of the truck bed, Cannonball, as well as the truck’s owner. She asserted both products liability and negligence claims.

Postmortem blood samples revealed Williams’ blood contained levels of narcotic pain  medication at the time of his death. Based on these results the bed manufacturer believed Williams may have been cognitively impaired at the time of his death and sought discovery on Williams’ prescription drug history. Specifically, Cannonball requested  the production of Williams’ prescription medication records for the six years prior to his death.

The Trial Court Ruling

The trial court entered an order compelling the production of six years of prescription medical records. Williams’ spouse filed a writ of prohibition requesting that the appellate court prevent the production of the records.

The Ruling on Appeal

The Missouri Southern District Court of Appeals agreed with Williams’ spouse. Although, Williams’ level of cognitive impairment at or near the time of his death was a valid subject of discovery, the trial court abused its discretion when it ordered discovery on the six years prior to death. Therefore, the appellate court prohibited the trial court from compelling production of six years’ worth of records.


Unfortunately, this decision did not establish a  hard and fast rule on the temporal scope of discovery on medical issues or condition. This is likely due to the fact that such matters will be factually driven and different in every case. As such, it would be impossible to establish a broad rule applicable in all cases. This case could be used to argue for a very limited scope of discovery on prescription medications when the issue is the effect of medications at a very specific point in time.

The full opinion can be found here.

How many expert witnesses is too many?

The answer for one Eastern District Court of Appeals is four.

Facts of Case

Dr. Richard Follwell performed a surgery on Saundra Beaver that involved placement of surgical mesh to repair an abdominal hernia. After surgery, she was found to have a hole in her bowel that caused her to develop a severe infection. She eventually died from sepsis.

Her survivors sued Dr. Follwell for wrongful death. They asserted that Dr. Follwell was negligent in causing a hole in Saundra’s bowel and in failing to properly recognize and treat the problem. Dr. Follwell denied that he was negligent and that he caused the hole in Saundra’s bowel.

As part of his defense, Dr. Follwell asserted a theory that the hole in Saundra’s bowel was caused when a previously undiagnosed heart arrhythmia caused a blood clot to form that restricted blood flow to a section of Saundra’s bowel. This restriction on blood flow caused a portion of her bowel wall to weaken, die and perforate.

As part of the defense, Dr. Follwell testified as his own expert that he was not negligent and that Saundra’s bowel did not perforate under his care. He also hired four experts to support his defense. These doctors were experts in the fields of critical care, cardiology, vascular surgery, and colorectal surgery.

All four of the retained experts testified that Dr. Follwell did not cause the bowel perforation. Three of the four testified that Dr. Follwell did not breach the standard of care. All four repeatedly testified that the cause of the bowel perforation was a blood clot caused by a previously undiagnosed cardiac arrhythmia.

The Trial Court Ruling

At trial, the court overruled plaintiffs’ counsel’s objection that the multiple experts testifying to the same thing was cumulative. The jury returned a verdict in favor of Dr. Follwell.

The Ruling on Appeal

The Eastern District Court of Appeals reversed the verdict and ordered a new trial.

The court of appeals noted the trial court had an obligation to determine when repetitive evidence becomes so prejudicial that is outweighs its cumulative value. The trial court has to determine when cumulative evidence should stop. It also noted that evidence must be legally relevant. To be legally relevant, the usefulness of the evidence must not be outweighed by its costs, or prejudice. This is true even if the evidence goes to the root of the matter in controversy. Here, the concern is that the parade of multiple experts offering the same opinions will result in the jury simply counting the number of witnesses rather than fairly considering the qualifications and credibility of each expert.

The court of appeals noted that there is no bright line test for this. However, here four experts offering the same opinion was too much. The court did seem to say that all the experts could testify. However, they could not all offer the same opinions. Therefore, the defense could use each of the experts to explain to the jury the aspects of the case that fell within their areas of expertise.


Plaintiffs’ attorneys may view this as a victory. It provides some relief from the concern that a defendant will simply “outman” the plaintiff with experts. However, the court does not limit the number of experts that may testify. Instead, there is a limit on the number of experts who can offer the same opinion. What that limit is, however, is not explicitly stated. The implication is that the limit may be driven by the facts and complexity of each case. Regardless, defendants run the risk of losing a defense verdict on appeal if they stack the expert deck too high.

The full opinion can be found here.

Punitive Damages in Medical Negligence Cases, Part 2

A recent Missouri Eastern District Court of Appeals upheld a $15,000,000 punitive damages claim against St. Louis University and one of its physicians. The claim arose out of the excessive prescription of opioid pain killers that resulted in a patient’s addiction.

The evidence showed that the patient was prescribed ever-increasing amounts of opioids for his complaints of pain. This occurred over a period of several years. It reached a point where the patient received three different opioids for his pain. Combined, they totaled 13 times the recommended daily dose of opioids. In addition, the evidence was that the prescribing physician knew of the dangers of high dose opioids and did not perform the required risk-benefit analysis in prescribing the medications.

The court also noted that St. Louis University and its doctor were aware of the risks associated with prescribing the increasing amounts of opioids and the likelihood that it would cause the patient harm. This was evidence of  “complete indifference” to the patient’s safety.

The court also noted that St. Louis University did not have a computer monitoring system to oversee the amount of opioids being prescribed. Because the University knew of an ongoing opioid epidemic, its failure to monitor the prescription of opioids also constituted a complete indifference to the safety of its patients.

What is perhaps most interesting about this decision, is its implications for health care institutions. The court seems to be saying that, in the face of a known public health care problem of epidemic proportions, the institution itself should do something to address the issue. The institution can not simply rely upon the discretion of its individual health care providers to address any potential issues. Failure to take corrective action could result in punitive damages.

Punitive Damages in Medical Negligence Cases, Part 1

The Missouri Western District Court of Appeals recently held that punitive damages should have been submitted to the jury in a medical negligence trial.

Facts of Case

Joyce Oyler was hospitalized at Heartland Regional Medical Center for fluid buildup on her lungs. When she was discharged, a nurse phoned in multiple prescriptions to a Hy-Vee pharmacy. Nina Pecora was the pharmacy technician who took the phone-in prescriptions. One of the prescriptions was for metolazone, a diuretic. Pecora had no formal pharmacy training and had worked in the floral department before moving to the pharmacy.

Pecora made a number of errors in taking the prescriptions. These included misspelling several medications, misspelling the nurse’s name, entering an incorrect birth date for Oyler, and recording the wrong dosage for one prescription. Most importantly, Pecora recorded the order for daily metolazone as an order for daily methotrexate, which is primarily used in chemotherapy and to treat rheumatoid arthritis. When taken daily for more than a week, methotrexate can have lethal side effects. A pharmacist reviewed the prescription and did not catch the fact that the methotrexate was to be taken daily. In addition, Hy-Vee did not have a computer system that would prevent a prescription label for daily methotrexate to be printed.

Unfortunately, Oyler filled the prescription for methotrexate and took it daily. As a result, she died. He surviving husband and children filed a wrongful death claim. In the claim, they requested damages for aggravating circumstances (punitive damages).

The Trial Court Ruling

At trial, Hy-Vee admitted negligence, but moved  for a directed verdict on the claim for aggravating circumstances damages. The trial court granted that motion and did not allow the jury to award punitive damages. The jury eventually returned a verdict against Hy-Vee for $2,000,0000.

The Ruling on Appeal

The Oylers appealed the trial court’s ruling on their claim for punitive damages. They contended the presented sufficient evidence to support an award of punitive damages. The Western District Court of Appeals agreed and reversed the trial court’s decision not to allow the jury to consider an award of punitive damages.

Punitive damages are generally not available in a negligence claim. To recover punitive damages in a negligence claim, the plaintiff must show  the defendant knew or had reason to know a high degree of probability existed that the defendant’s conduct  would result in injury. The plaintiff must also show that the defendant acted with complete indifference to or a conscious disregard for the safety of others in circumstances that present a high probability of injury. The court found the evidence in this case justified allowing the jury to decide whether punitive damages should be awarded.


Rarely do negligence cases, especially medical negligence cases, result in an award of punitive damages. The particular facts of this case seem to make this one an exception to that general rule. Having said that, defendants should not approach these cases in a cavalier manner. Diligent discovery may unearth facts that would allow the court to let a jury decided punitive damages.

The decision can be found here.


Breach of Warranty Not an Occurrence Under Commercial Liability Policy

A recent Missouri Southern District Court of Appeals ruling held that a claim for breach of the implied warranty of habitability was not an occurrence as defined in a builder’s commercial liability policy.

Facts of Case

Homeowners purchased and moved into a house built by Builder. Shortly after moving in, Homeowners noticed water in the lower level.  Water leaked into the lower level repeatedly for months. This caused a number of problems, including a foul odor, wet carpeting, wall damage, and mold and mushroom growth. It got the point that Builder sent crews to clean the house after every hard rain. Homeowners notified Builder of the problems with water leakage, but the problems were not repaired. They asserted a breach of the warranty of habitability because the house was not fit for the use for which it was purchased. Homeowners then sued for the breach of the implied warranty of habitability. At trial, the jury assessed the the Homeowners’ damages at $255,594.

Homeowners then sued Builder’s insurer, Barton Mutual Insurance Company (“Barton”), for equitable garnishment to collect the judgment. Barton denied coverage and contended that Homeowners’ claim was not covered under the commercial liability policy issued by Barton to Builder. At the trail against Barton, Homeowners asserted that the cause of the water leakage was unknown.

The Trial Court Ruling

The trial court ruled in Homeowners’ favor and found the the policy provided coverage. This meant Barton would have to pay the judgment. Barton appealed.

The Ruling on Appeal

The Southern District Court of Appeals found that there was no coverage and reversed the trial court’s judgment.

The policy defined “occurrence” as: an accident and includes repeated exposure to similar conditions. The court noted that an accident is an event that takes place without expectation or foresight. It is an undesigned, sudden and unexpected event. Further, the failure to perform work according to specifications (i.e., a breach of contract) is not an occurrence.

The appellate court noted that a judgment for Homeowners on the theory of breach of the implied warranty of habitability does not require a finding of negligence or foreseeability on the part of Builder. Therefore, because Homeowner admitted the cause of the water leakage was unknown, there was no evidence that the cause of the damage was an “occurrence.” As a result, the appellate court reversed the trial court’s judgment.


Ordinarily, the trial court’s judgment against the insured (Builder) would be binding upon the insurer (Barton). This means that, had Homeowners proceeded against Builder on a theory of negligence or one that required the jury to find that the damage resulted from an occurrence, the insurer could not have contested that fact in the equitable garnishment action. Unfortunately for Homeowners, they needed to establish the damage resulted from an occurrence in their action against Barton and did not do so. Therefore, if possible, plaintiffs should always plead and attempt to proceed to judgment on a theory that would result in insurance coverage. In this way, the insurer will not be able to relitigate certain facts that may relieve it of the obligation to pay the judgment.

The opinion can be found here.

What Is An Underinsured Motor Vehicle?

Do you have underinsured motor vehicle coverage? Have you read your insurance policy? Have you talked with your insurance agent about your coverage? You should, because the coverage you have is probably not the coverage you think you have or want. A recent Missouri Court of Appeals decision illustrates this issue.

Facts of Case

Richard Lawson was a passenger in a vehicle owned and driven by his daughter, Nicole Lawson. A driver in another vehicle, Sophie Rehagen, rear-ended the Lawson vehicle. Richard suffered serious injuries and damages in excess of $150,0000.

Rehagen’s car was insured with liability limits of $100,000. Nicole had insured her car as well, including purchasing underinsured motorist coverage. Under the terms of the policy, Richard qualified as an insured eligible for underinsured motorist benefits. Nicole’s underinsured motorist limits were $50,000 per person and $100,000 per accident.

Nicole’s insurer denied it owed Richard underinsured motorist coverage benefits. Richard filed suit agains the insurance company.

Most people would think that because Richard had suffered injuries in excess of the Sophie’s policy limits ($100,000), he was underinsured. Therefore, he should get underinsured motorist benefits under Nicole’s policy (up to $50,000). Not so.

Insurance Policy Language

Nicole’s policy stated that it would “pay for damages that an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury.”

It went on to define underinsured motor vehicle as “a land motor vehicle or trailer of any type for which the sum of the limits of liability under all bodily injury liability bonds or policies applicable at the time of the accident is less than the coverage limit for Underinsured Motorist Coverage shown on the declarations page.”

The Ruling on Appeal

The Eastern District Court of Appeals agreed with the insurance company that it did not owe underinsured motor vehicle coverage benefits to Richard. The policy was clear and unambiguous. For the underinsured motorist coverage to apply, Sophie’s liability policy limits had to be less than Nicole’s underinsured motor vehicle policy limits. They were not so there was no coverage.

How Does This Affect You?

First, most people think underinsured motor vehicle coverage simply kicks in if the other driver’s policy doesn’t have enough coverage. This is generally not the case. Most policies do not provide underinsured benefits unless the policy’s underinsured limits are greater than the liability limits of the other driver. If you have any question regarding the coverage in your policy, you should contact your insurance agent.

Second, interpretation of these policies can be confusing. If there is any ambiguity in the insurance policy, a court will construe it in favor of coverage. Therefore, if you have an underinsured motor vehicle coverage claim that has been denied or challenged by the insurer, you should consult with an attorney experienced in insurance policy interpretation to review your claim.

The court’s opinion can be found here.