A New Jersey Jury has awarded a South Dakota woman $3.35 million dollars in the first vaginal mesh case to go to trial against Johnson & Johnson regarding the Ethicon mesh, reports Reuters.
I’m pleased and humbled to be chosen as a Super Lawyer in Missouri in the field of medical malpractice.
“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.
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?
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.