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Johnson & Johnson and its division, DePuy Orthopedics, was hit with a $498 million dollar verdict today in federal court in Dallas Texas, for its defective Pinnacle hip implant. The case involved 5 plaintiffs, all Texas residents, who were implanted with the Pinnacle metal-on-metal hip device.

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Verdict was for approximately $130 million in compensatory damages and almost $360 million in punitive damages.

The trial team was led by Mark Lanier. Our office has been happy to place a small roll in this case and continues to accept additional victims of this truly awful product.

For a consult, please call.

On May 8, 2015, Govern Jay Nixon (D) signedinto law the latest attempt by Missouri’s Republican legislature to take away a medical negligence victim’s right to full and fair compensation. Yes, the legislature has once again capped medical malpractice damage awards, placing their judgement before that of an independent jury.

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In 2005, the Missouri Legislature capped malpractice awards. In 2012, in Watts v. Cox Medical Centersthe Missouri Supreme Court said the caps, except with regard to death claims, violated the Missouri Constitution by infringing on the common law right to trial by jury. (Because wrongful death claims did not exist at the time the Missouri Constitution was adopted, the caps applicable to such cases were deemed valid.)

So … isn’t that the end of the discussion? Our Supreme Court deemed it unconstitutional, right? Well, apparently our state legislature doesn’t agree with that ruling. So, in Senate Bill 239, the Legislature effectively repealed part of the Missouri Constitution. It legislatively nullified the Missouri Constitution as it applies to doctors and hospitals. And then capped damage awards … again.

Those who uphold the right to trial by jury fought and obtained some concessions. First, the new cap is slightly higher–$400,000 for non-economic damages v. $350,000 under the 2005 law. (Non-economic damages are those other than for lost wages and medical bills.) Second, the new law institutes a 1.7% per year cost of living increase on the cap. Third, and most important, the law creates a second, higher cap for catastrophic injury and death cases.

The law defines “catastrophic injuries” as this involving Quadriplegia, paraplegia, loss of 2 or more limbs, brain injury, major organ system failure and blindness. The cap on non-economic damages for these types of injuries is $700,000. Is that a lot of money? Sure it is. Is that a lot of money if you have been rendered a quadriplegic because of medical negligence and you will never walk, or run or dance at your child’s wedding? Of course it isn’t. Is it a lot of money if an infant is injured and will spend the rest of their life in a nursing home? Obviously it isn’t. It is slightly less insulting than $400,000.
The same $700,000 cap applies to death cases.

Will this new law pass constitutional muster? I strongly doubt it. The Missouri Legislature has decided to selectively repeal a fundamental right granted by the Constitution, and only with regard to a very select group of defendants. Let me make this perfectly clear: These caps do not apply to any other type of injury case. Not auto accidents, not truck accidents. Not product liability claims, nothing. So if you are injured as a result of anyone’s negligence, other than a doctor or hospital, you are entitled to your full Constitutional rights. But not if you are injured by a doctor or a hospital.

In an upcoming post I’ll address what this means to those who might have malpractice cases currently pending.

A report titled Another Reason Why You Should Ban Smart Phones from the OR raise, at least for me, this question: What’s the first reason? Is there any reason why a surgeon, anesthesiologist, nurse or surgical tech should be using a smart phone in the OR? Granted, some hospitals may utilize tablets to record patient vitals, but what reason is there to be surfing the ‘net during a procedure?

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And as for the anesthesiologist posting to Facebook during a procedure? Seems to me this doctor needs to have his license revoked.

How much is something going to cost? Always a fair question and almost always one that can be answered before you purchase anything. But when you are talking about medical procedures, particularly things like hip and knee replacements, you may not be able to find out.

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NPR, reporting on a study by Health Affairs, shows that the vast majority if orthopedic surgeons have no idea how much the implant they are using ends up costing the patient. Only 21% of them were able to accurately estimate the cost of the implants (accurate being within 20% of the actual cost).

That is really an astounding finding. Patients are consumers of medical services and should expect and demand transparency in pricing. Of course you can’t predict the final cost of any procedure because complications occur, but the base cost of the procedure should be transparent.

One problem? As NPR report, the costs of implants are often negotiated by the hospitals. Thus the same implant can be wildly different prices depending upon where the procedure is performed.

Bottom line: patients need to demand transparency in pricing.

In 1999 the Institute of Medicine published its landmark study “To Err is Human” which estimated that medical errors cause up to 98,000 deaths per year. Now, Pro Publica reports on a study in the current issue of the /Journal of Patient Safety that more than doubles that estimate.

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According to the evidence-based study between 210,000 and 440,000 patients die each year as a result of medical errors. This would make medical mistakes the third-leading cause of death behind heart disease and cancer (all cancers combined).

I’d like to say that I’m shocked by this finding, but I’m not. Unfortunately, doing what I do every day I see the mistakes constantly. You would think that I see the bad medicine and not the good, but that isn’t entirely true. In fact, what I see most often is very good, even heroic, medicine every day. The care that is given to try to correct the mistakes made, usually by others, is often incredible. But the mistakes that set the patient down that path are often clear and infinitely preventable.

Attempts to shield doctors and hospitals from the effects of their mistakes, such as attempts to limit the damages that can be awarded in medical negligence lawsuits, are misplaced. Instead, the focus should be on eliminating the mistakes, through the implementation of processes and procedures to eliminate the most frequent errors. And true oversight by state regulators on physician licenses and hospital accreditation is also needed.

It makes sense that the focus should be on eliminating the problems and helping the victims of medical mistakes, not on shielding the negligent.

As reported by the New York Times, Johnson & Johnson/DePuy was aware of massive failures of its ASR metal-on-metal hip replacement system by 2011.

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This information is coming from internal J&J documents as part of a trial expected to begin to today in Los Angeles. The internal analysis showed that nearly 40% of the ASR hips failed within five years of implant. The analysis also suggests that the implant is likely to fail prematurely in thousands of more patients in the next few years. Those patients will have to undergo costly and pain revision surgery.

If you or a loved one have a DePuy ASR hip implant, please call us at 1-800-557-8176 or contact us through our website at hendricksonlaw.com. You may be entitled to a substantial damages award.

For more information on the DePuy implants, see here, here and here.

Many hospitals, and surgeons, are touting the benefits of their latest piece of technology–the DaVinci Robotic Surgery System.  This new piece of high technology allows the surgeon to sit at a video game-like console to perform many types of surgery.   Instead of performing minimally invasive surgery using  now time-tested techniques of laparoscopic surgery, surgeons are opting for the DaVinci system.  The claimed benefits are that the procedure is less invasive, has fewer complications, less pain and promises a quicker return to normal activities–all the same benefits derived from laparoscopic techniques compared to “traditional” techniques.  However, it is becoming clear that patients may be experiencing a myriad of complications as a result of the DaVinci Robotic Surgery system.

So how do the three surgery types differ?  In traditional “open” surgery the surgeon makes an incision and actually places his hands and instruments directly into the patient.  The benefits are that the surgeon has a normal view and can manipulate organs and structures directly with his hands.  The surgeon has tactile and other sensory feedback.  Most surgeons are taught that when they encounter complications using any other type of procedure, they can and should convert to an “open” procedure for the remainder of the surgery.  In fact, almost every consent form for either laparoscopic or robotic surgery will include permission to convert to an open procedure if needed.

The gold-standard for many surgical procedure in the last twenty years has been laparoscopy.  In laparoscopy, the surgeon makes several small incisions and uses these incisions to insert a camera and instruments into the patient to perform the procedure.  The surgeon directly manipulates the instruments but views what is going on in the patient on a video monitor.  Almost every surgeon practicing today was either directly trained in laparoscopy or has been performing laparoscopy for many years.  The benefits of laparoscopy are less pain and a quicker return to normal activities.

And now there is the DaVinci Robotic Surgery System, which takes laparoscopy to a whole new level.  The same types of small incisions are made in order to insert a camera and instruments.  However, once the instruments are placed, the surgeon does not hold them in his or her hands.  Rather, the instruments are attached to a robotic surgery platform and the surgeon sits at a video console and manipulates the instruments using video game-like controllers.  The alleged benefit of this system is that it allows the surgeon to make much more precise and controlled maneuvers, such that a 1/2 inch movement of the controller may equate to a 1mm movement of the instrument in the patient.  The concept sounds wonderful.  However, in practice, problems appear to have arisen.

DaVinci Robotic Surgery systems have been used for abdominal surgeries such as gallbladder remove, for gynecological procedures such as hysterectomies and for other procedures such as prostatectomies.  They are even being used for endoscopic procedures.

However, patients have experienced complications such as bladder and bowel perforations, injuries to the ureter and rectum, and burns and other complications.  One suspected problem is that the DaVinci system utilizes an electronic scalpel, called a cautery, to make cuts.  The makers of the DaVinci system, Intuitive Surgery, Inc., a California company, used a monopolar system rather than a bi-polar system to ground the electrical current.  It appears that this less expensive system allows the current used to make cuts to jump to places unintended by the surgeon, sometimes far remote from the spot where the surgery is occurring.

Complications such as bowel and bladder perforations and other injuries can be life-threatening.  Serious injuries or death can occur if these complications are not promptly recognized and treated.

If you or a loved one have been injured during a DaVinci Robotic Surgery, please contact T

I’m pleased to share 10 Red Flags in General Surgical Malpractice Cases, published in the September 2012 issue of Trial magazine. Trial is the peer-reviewed journal of the American Association of Justice, the national trial lawyer’s association.

I was honored to be asked to contribute to such a prestigious publication.

As reported here, the Missouri Supreme Court, in Watts v. Lester E. Cox Medical Centers declared that caps on medical malpractice cases are unconstitutional. So, if you have a medical malpractice case in Missouri, what does that mean for you?

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First, if your case involves a death, it is not clear whether the limitation on damages is still in effect in those cases. In April, 2012, the same Court upheld caps applied in a medical malpractice wrongful death case. That case, /Sanders v. Ahmed was actually decided based on the pre-2005 law on medical malpractice caps. However, that decision may be read as standing separate from the Watts decision. In short, whether caps apply in wrongful death medical malpractice cases is still an open question.

Second, in cases involving injuries, but not death, the Watts decision is unequivocal. Caps on the amount of damages that a jury can award on cases that existed under the common law, such as medical malpractice claims for injuries, are unconstitutional. Without an amendment to the Missouri Constitution, legislation seeking to impose such limits will not be upheld.

Third, for active cases, and cases yet to be filed, a Court cannot impose a limit on the damages awarded for non-economic injuries, such as pain and suffering. Under the law declared unconstitutional, the amount of those damages was limited to $350,000. While that may seem like a lot of money, in situations involving life long injury and disability, it is readily apparent that the limitation was crippling. Children injured a birth, who would deal with life-long disability, were not fully compensated. Now, that restriction is lifted.

Fourth, if you have had a medical malpractice case resolved under the old law, whether it resulted in a judgment or a settlement, you won’t be able to go back and re-open those cases to achieve a bigger settlement or verdict. If the decision wasn’t appealed, then the case is final and you won’t be able to reopen it.

Obviously, the actual monetary affect on a particular case is going to vary. If you have a current medical malpractice case you should consult with your attorney about the impact. If you believe that you or a loved one was injured as a result of medical malpractice and would like to discuss your case, please call 1-800-567-8176 for a consultation.

On July 31, 2012, the Missouri Supreme Court issued its opinion in the case of Watts v Lester E. Cox Medical Centers. In a well-reasoned and detailed opinion by Chief Justice Richard B. Teitleman, the Court found unconstitutional the legislatively imposed limitations on damages that a jury can award in medical malpractice case found in §538.210 of the Revised Statutes of Missouri.

The law, passed as a component of sweeping changes to tort law in 2005, placed a limit of $350,000 on non-economic damages that could be awarded in a medical malpractice case.

The Missouri Supreme Court found that the limitation infringed on a jury’s duty, under the Missouri Constitution, to determine the facts in a medical malpractice case. One of the facts that a jury is charged with determining is the amount of the damages. Because the Missouri Constitution declares that the right a jury shall remain inviolate, the Supreme Court looked to whether the right to a jury, as it existed at the time the Missouri Constitution was adopted, included the right to have a jury determine damages. The Court held that it did and, therefore, §538.220 infringed on that right and was, therefore, unconstitutional.

The result is that a jury is not artificially limited in the amount of damages it can award. Of course, the jury’s judgment is still subject to review and revision by the Courts, both at the trial and appellate level. Either can chose to reduce an award based on the judicial power of remittitur.