Personal Injury Law

Erin's Corner: "A Well Played Hand" - St Louis Wrongful Death Judgment Not Collectable Against Malpractice Insurer

By Benjamin J. Sansone, Esq.

In a recent St Louis Wrongful Death Verdict, a family will not be able to collect on the $2.4 million dollar St Louis Missouri wrongful death judgment against a local dentist, at least not against any Missouri malpractice insurance coverage. The St Louis wrongful death victim, Henry Johnston, underwent sedation at James Bubenik?s dentist office and died four days later from complications. It should be noted six months prior to Mr. Johnston?s visit, another patient died from the same complications. Apparently, during the trial, the Johnston family somehow decided to or stipulated to go after Mr. Bubenik?s insurance company only. Medical Protective Co., the insurance company, filed a lawsuit against the Johnston family, arguing that it was not liable for any Missouri medical malpractice judgment ?because the dentist didn?t cooperate with the insurer in preparing his defense.? Bubenik had repeatedly asserted his Fifth Amendment rights, refusing to testify in court or depositions. U.S. District Judge E. Richard Webber said this refusal nullified the medical malpractice insurance company?s duty to provide coverage to Bubenik. The 8th U.S. Circuit Court of Appeals affirmed this decision ? unanimously. Attorneys for the Johnston?s family argued that ?the language of the general cooperation clause was ambiguous because it didn?t specifically require an insured to give testimony.? The 8th Circuit rejected the argument.

There is much more to this case than what is divulged in the different articles written about this. However, it is apparent that the defense had a good hand delivered to them and played it well. From the aces literally handed to them from the Plaintiff?s attorney during the trial, to the doctor?s sleight of hand, and finally the Circuit Court of Appeals decisions, the defense bluffed their way to a $2.4 million win that was justly due to the deceased?s family.

I encourage you to read this wrongful death decision and realize just another reason why you need to find an experienced and skilled Missouri personal injury attorney to represent you in a wrongful death case. It distresses me that the case I mentioned above was lost because of ?bad lawyering? or inexperience. Sometimes a ?friend-of-a-friend? or the guy that helped you out of a speeding ticket isn?t your safest bet.

Full post as published by Missouri Injury Law Blog on April 05, 2010 (boomark / email).