There is a new type of medical malpractice case that has started to hit the courts. Due to the recent upswing in robotic-assisted surgery, we are seeing more and more lawsuits over serious injuries caused by da Vinci robotic surgeries. The da Vinci is a futuristic piece of technology that some hospitals are pushing on their doctors. The manufacturer, Intuitive Surgical, touts the device as a surgical tool for smaller incisions and quicker recovery times. Unfortunately, there are problems.
The first problem is the technology itself. Evidence collected so far indicates that there may be problems with the design or manufacture of the robot. During some surgeries, patients have been seriously burned by electrical current that jumped from the machine to the patient. In one case, a young woman who was scheduled for what should have been a routine hysterectomy had burns to her intestines and an artery, and she died within two weeks of the surgery. Other cases have seen broken surgical blades.
The second problem is training–this is a sophisticated piece of equipment. To doctors using it, it may feel like a video game, but the equipment and software are complex. This is not like learning to pass eight levels of Super Mario Bros. Hospitals are anxious for their doctors to use the equipment so that they can advertise their cutting-edge technological expertise. The manufacturer provides a small degree of training, but in light of the number of mistakes made by doctors during surgery, that training is clearly insufficient.
The da Vinci is used for any number of surgeries–most often hysterectomies, bladder surgeries and throat surgeries. Though cases are being filed, these are untested waters. Lawyers and clients must decide whether to bring a product defect case against the manufacturer (for failure to warn, design defect, or manufacturing defect), or a medical malpractice case against the surgeon or hospital, or both. Expert testimony in each type of case (product liability and medical malpractice) is extensive. To do both at the same will require experts in the underlying surgery, and perhaps others like computer programmers,software engineers and mechanical engineers.
It’s clear to everyone that pressure ulcers, also known as bed sores, are painful, dangerous and can even be deadly. These are the most common type of nursing home and assisted living negligence case. Frequently, patients who are immobile (whether because of physical or mental injuries), are allowed to sit or stay in one position for too long. If the body doesn’t move regularly, blood doesn’t flow properly, and injuries develop to the skin surface. Left untreated, those minor injuries grow and deepen, sometimes becoming infected down to the bone and causing necrotic tissue.
It is likely impossible to completely prevent bedsores. The negligence in nursing home cases is typically focused on failure to identify and treat pressure ulcers before they get to a dangerous point. Without proper treatment, patients must be hospitalized and undergo painful cleaning and tissue removal. In the worst cases, patients die because of infection.
The Journal of the American Geriatrics Society reports in its September 2012 issue (Hospital-Acquired Pressure Ulcers: Results from the National Medicare Patient Safety Monitoring System Study) that they have found a correlation between bedsores and patient mortality. Evaluating 51,000 Medicare patients from 2006 and 2007, the authors discovered that hospital patients who develop bedsores are more likely to die, to be readmitted to the hospital within 30 days, and to have longer hospital stays. The key, of course, is prevention and early treatment. Evaluating patients who had bedsores, they found that the most common locations are the tailbone or sacrum, followed by the hip, buttocks and heels.
If you or a loved one has developed pressure ulcers in a hospital stay or at a nursing home, contact our nursing home abuse lawyers at 443.850.4426, or send an online confidential request for information. We can order your medical records, have them reviewed by an expert, and determine whether you have a nursing home lawsuit.
The Court of Appeals (the highest court in Maryland) published its September 25, 2012 decision in S&S Oil, Inc. v. Elaine W. Jackson. Judge Greene penned the opinion for the court, which tackled the question of whether Maryland’s rules on assumption of the risk amount to the same thing as contributory negligence. Here’s the case setup:
Ms. Jackson was at a gas station to buy some motor oil. She went in, purchased the oil, and walked back to her car. Her granddaughter asked for a soda, so Ms. Jackson went back inside, found the soda machine, and walked toward it. She tripped on uneven flooring in front of the machine, which she later described as sloped and lumpy. The store uneven area was part of store renovations, and the store’s owner said there was caution tape near the area and a “watch your step” sign close by. Ms. Jackson did not see any of it before her fall.
At trial, the judge gave oral instructions for assumption of the risk:
A plaintiff cannot recover if the plaintiff has assumed the risk of her injury, I guess. A person assumes the risk of an injury if that person knows and understands the risk of an existing danger, or reasonably should have known and understood the risk of an existing danger and voluntarily chooses to encounter the risk.
The verdict sheet (the document that the jurors fill out to help decide who wins the case), however, did not contain any section about assumption of the risk. It did mention Maryland’s contributory negligence law, which is always raised in slip-and-fall cases. Contributory negligence basically says that if the plaintiff is even 0.01% responsible for her injuries (perhaps because she wasn’t watching where she was going, she was wearing inadequate shoes, etc…), and the defendant is 99.99% responsible, the plaintiff loses her case. The judge believed that the rule on contributory negligence seemed to encapsulate assumption of the risk. The jury decided that Ms. Jackson proved her case and rendered a verdict of $143,416.41.
The Court of Special Appeals, in a wacky statement, said that “[i]f the jury determined that [Ms. Jackson] assumed the risk of her injury, it would necessarily find that she was contributorily negligent.” That’s all well and good, but it’s never been the law. Assumption of the risk and contributory negligence are two totally separate things. If I see a wet floor sign, and I choose to walk ahead into the water, I am assuming the risk of falling, even though I am walking carefully and perhaps not negligently. A risk may be reasonable, for one reason or another. If I walk with a blindfold on and slip on a wet floor, I am contributorily negligent.
So, the trial judge orally instructed the jury on assumption of the risk, and told them that the assumption of the risk argument was subsumed in the contributory negligence portion of the verdict sheet. That’s definitely not the right way to do it, but theoretically it accomplished the same thing as a separate line for assumption of the risk. The jury knew what the rules were, despite a little mix-up from the court. The plaintiff would have lost if the jury found either contributory negligence or assumption of the risk, so rolling them all into one shouldn’t have changed anything.
The Court of Appeals decided otherwise, however. In remanding the case for a new trial, they held that the jury was probably confused–they were told about assumption of the risk, but there was no instruction on the jury verdict form. The plaintiff’s attorney in the case probably should have joined with the defense in arguing for a separate assumption of the risk line–it’s hard to do something like that because it is contrary to instincts, but the case is now right back where they started.
Slip-and-fall cases are among the toughest types of cases to try. It is difficult to prove that the owner knew or should have known of a dangerous condition. Assumption of the risk and contributory negligence are always raised as defenses, and the gut reaction of many people is that someone who falls is at least partially responsible for the fall (the phrase used is “should have watched where you were going.”). We may watch where we’re going, but falls happen, regardless. We’re not expected to keep an eye constantly on the floor, and no one can keep up that kind of behavior. The lawyers in the case did a good job, but now they’ll have to do it again.