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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.

The DaVinci robotic surgery system by Intuitive Surgical, Inc. is a high tech, 3D “robot” remotely operated by a surgeon. The DaVinci system is the hottest new product, touted by Intuitive and the hospitals it sells the system to as the greatest thing since the invention of the scalpel. They promise more precision, faster recovery and other benefits. But is it all that? Reality is substantially at odds with the marketing hype.

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The DaVinci robot is, at its core, simply another way to perform laparoscopic surgery. Laparoscopic minimally invasive surgery has been around for 20+ years and is utilized in many common surgical procedures: gallbladder, hysterectomy, prostatectomy, hernia and many others. Laparoscopic surgery is performed by a surgeon who places ports into the abdomen and insufflates the abdominal cavity with gas to allow for room to insert and manipulate surgical instruments through the ports. A camera and light are inserted through one port, so that the surgeon can see inside the patient on a video monitor. The surgeon directly manipulates the instruments through the portals. For more on laparoscopic surgery, see this article in Wikapdia.

The DaVinci system differs in that the surgeon’s direct contact with the instruments is severed. Traditional portals are placed, but then instruments and camera are inserted and these are attached to the DaVinci robot system. The surgeon, although still in the same OR room, sits at a remote console and operates the instruments via joystick-like controllers. An easy way to visualize it is to say it is like he is playing a video game. Except in this case, he doesn’t get to simply start over if a problem arises.

Intuitive has saturated the market with the DaVinci robot, by hyping the purported advantages of the system. They claim that the robotic system allows the surgeon an unprecedented 3D view inside the patient, as opposed to the 2D view of traditional laparoscopy. They assert that the system allows for the surgeon to make minutely accurate motions, because he or she can move their hands in the controls but have that translate to only millimeter movements inside the patient. It all sounds great. But the reality is not quite equal to the hype.

Reports have indicated problems with the robotic arms moving independently, causing internal injuries. Reports exist that the electric cautery instruments used in parts of certain procedures are sending electrical arcs out and causing burn injuries to adjacent organs or even causing remote injuries to organs far removed from the surgical location due to improper grounding. There have been reports of the system simply freezing during a procedure.

Even more frightening are the indications that hospitals are allowing surgeons to utilize the DaVinci with very little training and very little supervision. Any time a new surgical technique or tool is introduced, the surgeon and the hospital have a responsibility to make sure the surgeon has adequate training. Some sources indicate that a surgeon may require 100 or more surgeries before he is technically competent with the DaVinci. However, hospitals are not requiring anything like 100 supervised surgeries before turning the surgeon loose to fly solo on the DaVinci. In fact, some are requiring little more that a weekend training session.

Suffice it to say, that we anticipate significant malpractice claims arising out of the use of DaVinci robotic surgery systems. Product liability claims against Intuitive may be warranted in some cases. But even more likely are cases against the surgeons and the hospitals for malpractice, failure to advise the patients of the surgeon’s lack of experience, inadequate training of support staff and many other issues.

If you or a loved one has experienced injuries in connection with a DaVinci robotic surgical procedure, please contact our office for a consultation. Only an experienced medical malpractice attorney can tell you whether or not you have a case.

I’m pleased and humbled to be chosen as a Super Lawyer in Missouri in the field of medical malpractice.

What is Super Lawyers?

“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. To read more about the process, look here.

I’m grateful for the recognition.

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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.

Just a quick addition to my two previous posts regarding the Missouri Supreme Court’s decision declaring that caps on medical malpractice damages are unconstitutional: see the Post Dispatch’s editorial here.

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.

Johnson & Johnson’s DePuy division may be facing more than $3 billion in damages for its ASR and Pinnacle metal-on-metal hip implants, reports Reuters. Not a surprise to those of us involved in the metal-on-metal implant litigation.

DePuy recalled the ASR metal-on-metal implant in 2010, years after evidence in Europe and Australia showed that these implants were being revised at a rate drastically hirer than traditional ceramic or poly implants. DePuy was forced to recall its ASR implants here in the U.S. after it became clear that a significant percentage of patients with these implants were experiencing metal debris reaction, which included pseudo tumors, infection-like reactions, loss of bone and muscle due to metallosis, early loosening and early failure.

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Shortly after the ASR was recalled, it became clear to many that DePuy’s Pinnacle line was having similar problems. As calls poured in to attorneys around the country regarding the recalled ASR, a significant percentage of the calls were for DePuy Pinnacle implants with nearly identical problems.

Multi-district litigation cases are on-going for both the ASR and Pinnacle implants. MDL cases are contemplated regarding other metal-on-metal implants from other manufacturers. In recent weeks, Stryker has issued a recall on its modular stem system, the first non-bearing surface recall. (The DePuy and Pinnacle cases involve the weight-bearing implant surfaces, namely the artificial ball and cup joint that replaces the natural hip mechanism–Stryker’s implant is a modular femoral stem system that appears to be causing similar reactions as the bearing surface metal-on-metal implants, but due to corrosion at the connection of the modular components, rather than wear due to use of the bearing surfaces.) You can read about the Stryker recall here.

It is clear that there is trouble brewing for many, if not all, metal-on-metal hip implants. If you have experienced any of the following problems as a result of your metal-on-metal implant, please call our office at 1-800-557-8176:
Early Revision
Loosening
Pseudotumor
Metallosis
Implant Failure
Loss of Surrounding Muscle
Continuing Pain

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Another hip implant has been recalled. Stryker Orthopaedics has recalled two brands of its devices, as reported here. Unlike previous recalls by DePuy which were of the metal-on-metal implant contact surfaces, consisting of a metal ball and a metal hip socket, the Stryker recall is of femur stem implants.

Post-implant complications indicate that the Rejuvenate and ABG II modular-neck systems are experiencing fretting and corrosion at the modular neck junction. This corrosion and fretting appears to be leading to the same kind of patient reactions as the metal-on-metal head implants.

It would appear that patients may expect to encounter metalosis, pseudo tumors, aseptic loosening and other problems.

If you or a loved one have Stryker implant and have experienced any problems, please call our office at 314-721-8833.