Our law firm is again involved in providing a presenter for a Missouri Bar program. This time it is a mock trial program on April 26, 2013 at the Airport Renaissance Hotel. The presenters on the program are all members of the American College of Trial Lawyers, which organization actually co-sponsors the event. This particular program is presented essentially for younger lawyers, or more seasoned lawyers wanting to improve their individual trial skills. The presenters, like Don Schlapprizzi from our office, are all fellows in the American College of Trial Lawyers. A fellow is a trial lawyer whose trial skills and trial record have been reviewed, and who is then invited to membership only after a very exhausting and rigorous screening. The Academy provides these programs from time to time as a service to the public and to members of the Bar.
This particular program is based on a fact pattern case involving an automobile-truck crash causing a fatal injury that resulted in a wrongful death action being brought by the survivors of the deceased individual. The trial demonstration is abbreviated, involving only opening statements, witness examination and cross-examination, and closing arguments provided by the Academy lawyers. There is time then set aside for audience question participation.
Shout-Out to Don Schlapprizzi selected as the Missouri Bar guest lecturer on the subject “Anatomy of a Medical Negligence Case” on April 3, 2013
Having been selected as the medical malpractice attorney of the year, Don has been asked and agreed to act as the guest lecturer for the Missouri Bar Program to be held at Saint Louis University Law School for the public on the subject of “Anatomy of a Medical Negligence Case”. The public is invited to register and attend the April 3, 2012 session. This program is a part of a series that was established several years ago with the view to aquaint those in the public sector who have an interest in legal issues and how legal issues impact the public at large.
Click below to learn more about the Program and/or register
http://www.mobar.org/minilawschool/
Leases, Medical and Hospital Records
Currently there is the ever increasing use of “arbitration” clauses in landlord leases, medical and hospital records, and contracts of various types.
An “arbitration” clause is one that provides that if the entity with whom you are dealing (landlord, hospital, doctor, etc.) becomes negligent and causes you a harm or injury to your person or property, that by the force of this clause you thereby agree that you will give up or waive your legal rights to pursue a case in court by a lawsuit, waive your right to a trial by jury, and that you would have agreed to submit your injury claim to an arbitrator.
The caution is, when entering any agreement, to read it carefully and “look before you leap” to make sure that by signing the document you would consciously and knowingly be giving up a recovery right that the law otherwise provides and thereby sacrificing the right that we all have as Americans—the all important right to a trial by jury.
Landmark Missouri Supreme Court Decision
On Tuesday, July 31st the Missouri Supreme Court handed down a singularly significant decision holding that the legislature’s limitation or cap on medical malpractice jury decisions was unconstitutional because such law deprived an injured person of their “inviolate” constitutional right to a trial by jury. The right to a trial by jury in civil cases has been enshrined in our Missouri Constitution from its inception. This decision removes the strident $350,000 limitation or cap on non-economic damages that had been imposed by the legislature that had only applied in medical malpractice cases. Medical malpractice cases involve the negligence in the care and treatment rendered to patients by doctors, hospitals, and other heath care providers. Decisions heretofore permitting the limitation or cap are no longer to be followed. Included in the category of non-economic damages are pain, disability, disfigurement, and loss of enjoyment of life.
The Supreme Court decision was extremely well reasoned and once and for all put to an end the senseless limitations on recovery for grievously injured individuals who have lost their sight, or limbs, or suffered brain damage permanently by negligent or careless conduct.
Victimized Once by the Tortfeasor and Again by Their Own Health Insurer
Health insurance companies have had free reign when it comes to recovering medical payments paid on behalf of their insureds that have been injured by the negligence of a third party. These companies have successfully carved a niche of unchallenged subrogation reimbursement against their insureds under the auspices of ERISA. These companies have argued that Congress, through its enactment of ERISA in 1974, considered and endorsed subrogation in the context of health insurance. Ironically, when Congress passed ERISA, subrogation by a health insurer was non-existent. Although it was enacted in 1974, it was not until the 1980’s that health insurers began to seek subrogation on personal injury claims.
Recently, the United States Court of Appeals for the Third Circuit has come down with a holding that may begin to level the playing field and require health insurance companies to think twice before they proclaim their unobstructed right to reap the benefit of their insureds’ injuries. In US Airways, Inc. v. McCutchen, 663 F.3d 671 (3rd Cir. Nov. 2011), James McCutchen was seriously injured in an automobile crash. His health insurance benefit plan through US Airways paid $66,866 for his medical expenses. After James recovered $110,000 from third parties, US Airways stepped in and demanded reimbursement of the entire $66,866. James’ net recovery was less than $66,000. The Third Circuit concluded that full reimbursement to US Airways, Inc. was inappropriate and inequitable. The Court further found that full reimbursement would amount to a windfall for US Airways, Inc. This judgment was appealed and the United States Supreme Court granted certiorari on June 25, 2012.
Time will only tell if our courts will help level the playing field. In the meantime, it is our job as advocates for the seriously injured to take a stand against the second victimization of our clients by their own health insurance companies.
For more discussion on this topic see “The Revictimization of Personal Injury Victims by ERISA Subrogation Claims” by Roger M. Baron and Anthony P. Lamb. http://fightsubro.com/wp-content/uploads/2012/03/RogerBaron-Revictimization-article2.pdf .
SJR51: The independence of our judiciary is in the hands of Missouri voters
The Missouri Legislature has voted to “reform” the Missouri Nonpartisan Court Plan, a system designed for the selection of judges based on merit rather than on politics. The Plan’s inception in 1940 was roused by the corruption and widespread abuses of the judicial system…namely, the increasing role of politics in judicial selection and decision making. The plan was integrated into the Missouri Constitution in 1976. Today, the independence of our judiciary, which has been secured and safeguarded by the Missouri Nonpartisan Court Plan for over 70 years, is threatened by proposed resolution SJR51.
SJR51, passed in both the House and Senate, will appear on the November ballot as a referendum to amend the Missouri Constitution’s Nonpartisan Court Plan. Proponents of the “reform” claim the change will take power away from special interests and return it to the citizens of our state. Are they correct? To whom is this “power” returning?
Under the current Missouri Nonpartisan Court Plan, the judicial panel for the Supreme Court and Court of Appeals is selected by the Appellate Judicial Commission. The Appellate Judicial Commission is composed of: three lawyers elected by the lawyers of the Missouri Bar for six year staggered terms, three citizens appointed by the Governor for six year staggered terms, and the Chief Judge of the Supreme Court. Those seven members choose three people after reviewing their applications, letters of recommendation, and the public interviews; the Governor then chooses a judge from those final three. The appointed judge, after being on the bench at least one year, then stands for a retention election in the next general election. At that time, voters have a chance to say whether or not a judge will stay in his or her position.
Lawyers Governor Judiciary
LLL GGG J → 1, 2, 3
↓
Governor’s choice wins
Under the proposed resolution, SJR51, the composition of the Appellate Judicial Commission will change. First, the Chief Judge of the Supreme Court will no longer be a member; rather, a retired judge will be a non-voting member. Second, four citizens will be appointed by the Governor; two when the governor is sworn in, and two after two years of being in office. The three lawyers elected by lawyers will remain the same. The resolution will allow the Governor to have control of the Appellate Judicial Commission (4 to 3) within two years of being in office.
Lawyers Governor
LLL GGGG → 1, 2, 3
↓
Governor’s choice wins
The proponents of SJR51 are incorrect; the resolution will not return power to the citizens. SJR51 will return power to the Governor. It removes the single judicial vote from the commission and gives that vote (along with majority) to the Governor. The “reform” will tip the scales (4 to 3) in favor of politics.
SJR51 threatens the independence of our judiciary. We oppose it.
“Light At The End Of A Dark Tunnel”
Statistics from recent years provide information that over 98,000 deaths have occurred in hospitals due to medical errors (malpractice); and this does not include injuries both inside and outside of hospital settings caused by medical errors.
In view of such alarming statics, surprisingly our Missouri State Legislature, especially by actions in 2005, have passed laws that severely limit the monetary recoveries that an injury person or family can receive in meritorious cases for death and grievous injuries caused by medical negligence, malpractice conduct. These severe limitations have negatively impacted patient’s rights and have had a chilling effect on individuals pursuing legitimate cases for medical error.
From the legal perspective and from the rule of law perspective, these limitations have overlooked and violated basic fundamental constitutional rights to an inviolate right to a trial by jury, equal protection of the law, and the separation of the powers between the legislative and judicial branches of government.
However, there is currently a legal challenge that has been made on the basis of the violation of these basic constitutional rights in the case of Watts v. Cox Medical Center. In view of these strident limitations and caps that the legislature has imposed on these types of cases, there is no wonder that the Bar and public at large, now await in hopeful anticipation that the Missouri Supreme Court will sustain the challenge, and by judicial decision reverse the unconstitutional restraints and limitations that have been imposed by this legislation. A decision in this regard is expected over the next couple of months.
A Lawyer’s Thought
My father told me: “never forget, we make our living on the tragedies of others.”
Truth is not always easy to accept. Is this virtuous? Is this honorable? Why did he say
this to me? What was his point?
Well, wisdom does not always come at first glance. My father has been a lawyer
representing individuals who have been wrongfully injured in hospitals, on the streets
and highways, at the grocery store, in the parking lot, in jails and prisons; individuals
whose lives have drastically changed because someone was not paying attention, because
someone was not doing their job, because someone wanted to get a product to the market
quickly at the expense of safety, the list and excuses go on and on. He has tried over 300
jury trials. He has won thousand dollar cases and multi-million dollar cases; his efforts
and conviction in every case, no matter what the case, is the same.
His simple comment to me was a reminder, a reminder to never lose sight of the
people we serve and the difficulties they have endured. I do not wish tragedy upon
others, but nevertheless tragedy comes, and when it so unfortunately does, I, along with
my family and colleagues at the Schlapprizzi Law Office, are honored to stand with those
who have been harmed, to tell their story, and to fight for their rights.
St. Louis hit with $1.2M verdict over fatal collision with police
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