Kreisman Law Offices Professional Corporation
Vincent Lowe brought this medical malpractice lawsuit in the Circuit Court of Franklin County, Mo., against Bryan J. Menges, D.O. and James D. Cassat, M.D. and their employers, Mercy Hospital East Communities (“Mercy Hospital”) and Mercy Clinic East Community (“Mercy Clinic”). In the lawsuit, they alleged that as a result of these defendants’ choosing not to timely diagnose and treat the condition known as mesenteric ischemia, which caused inadequate blood supply to Lowe’s intestines, a substantial portion of his lower bowel had to be removed leaving him with short bowel syndrome, which will require extensive ongoing medical care.
At the jury trial, the jury signed a verdict in favor of Lowe for past and future economic and noneconomic damages totaling $14,245,545. The jury made comparative fault assessments of 65% to Dr. Menges and Mercy Hospitals, 25% to Dr. Cassat and Mercy Clinic and 10% to Lowe for a net verdict of $12,820,990.
Mercy took an appeal challenging the admission of the life care plan that was prepared and submitted into evidence by Lowe’s expert.
On appeal, the Missouri Court of Appeals affirmed the verdict and the admission of the life care plan testimony.
“Lowe adduced the testimony of Jan Klosterman, an expert in life care planning, to establish his life expectancy and the cost of his future medical needs. The life care plan she produced for Lowe was admitted into evidence.” “[T]he records shows Ms. Klosterman’s projection of Lowe’s future medical costs was properly based on the undisputed permanent nature of Lowe’s medical condition . . .”
Missouri courts have long held that expert testimony to a reasonable degree of certainty that a defendant’s conduct placed the plaintiff at an increased risk of suffering possible future consequences—here, needing to stay on Gattex and TPN for life—is admissible to aid the jury in assessing the extent of the plaintiff’s present injuries, even if those future consequences are not reasonably certain to occur. Swartz v. Gale Webb Transportation, 215 S.W.3d at 151 (Mo.banc 2007).
“Under Missouri case law, expert testimony is admissible where it addresses the probability, short of reasonable certainty, that future treatment may be necessary and of the potential cost of such treatment.” Wiley v. Homfeld, 307 S.W.3d 145, 153 (Mo. App. W.D. 2009). (emphasis added) (citing Swartz, 215 S.W.3d at 131). (Holding that where a medical expert “could not testify with certainty how much treatment [plaintiff] would ultimately require,” expert’s testimony was nevertheless admissible “describe[ing] the various forms of treatment that might be required and the costs associated therewith”) overruled on other grounds by Badahman v. Catering St. Louis, 395 S.W.3d 29, 40 (Mo.banc 2013).
In Swartz, for example, the Missouri Supreme Court found that “testimony regarding [the plaintiff’s] increased risk of future harm was admissible . . . information the jury should have in the difficult task of trying to give plaintiff’s condition a dollar value” where there was evidence “that her back injury carrie[d] with it at least a 25% chance, and perhaps a 50% chance, of requiring surgery in the future. 215 S.W.3d at 132-33.”
In this case, Klosterman’s 25.7-year projection of life expectancy was properly based on the mortality tables of the 2016 National Vital Statistics Report, which was before the jury after the court took judicial notice of it. “Mortality tables are included in those facts required to be judicially noticed because they are considered of universal common knowledge.” Jackson v. Cherokee Drug Co., 434 S.W.2d 257, 264 (Mo. App. 1968) (citing Hohlstein v. St. Louis Roofing Co., 42 S.W.2d 573, 576 (Mo. banc. 1931).
These mortality tables are “customarily admitted to show the probable duration of the life of the injured plaintiff” and “cannot be rejected because of sharp variances in the hazards of life among various persons.” Dorsey v. Muilenburg, 345 S.W.2d 134, 142 (Mo.banc. 1961). “Such matters are generally considered as going to the probative effect of the evidence, and not to its admissibility.” Id.
Accordingly, the Missouri Appellate Court affirmed the jury’s verdict stating that Klosterman had adequate foundation to base Lowe’s life care plan and the life expectancy of 25.7 years.
Lowe v. Mercy Clinic East, No. ED 106447, 2019 WL 478158 (Mo. App. W.D. Oct. 1, 2019).
Kreisman Law Offices has been handling wrongful death cases, medical negligence lawsuits, nursing home negligence cases, brain injury lawsuits and birth injury cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Buffalo Grove, Lake Zurich, Hawthorne Woods, Barrington, Palatine, Wheeling, Vernon Hills, Lincolnshire, Libertyville, Round Lake Beach, North Chicago, Waukegan, Joliet, Romeoville, Bensenville, Streamwood, Schaumburg, Schiller Park, Bartlett, Hanover Park, Addison, Lombard, Bellwood, Oak Park, Western Springs, Wheaton, Downers Grove, Justice, Burr Ridge, Chicago Ridge, Hickory Hills, Chicago (Garfield Ridge, East Side, Pullman, Washington Heights, Roscoe Village, Beverly, Morgan Park, Mount Greenwood, Englewood, Fuller Park, Douglas, Chinatown, Hyde Park, Wrigleyville, East Garfield Park, Near North Side, Old Town, Bucktown), Elmwood Park, Northlake, Franklin Park and Rosemont, Ill.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.
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